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REVIEW 



OF 



LYSANDER SPOONER 



UNCONSTITUTIONALITY OF SLAVERY. 



REVIEW 



OF 



LYSANDEU SPOONER'S ESSAY 



ON THE 



UNCONSTITUTIONALITY OF SLAVERY. 

REPRINTED FROM THE " ANTI-SLAVERY STANDARD," 
WITH ADDITIONS. 

BY 

WENDELL PHILLIPS. 



BOSTON: 

PRINTED BY ANDREWS & PRENTISS, 

No. 11 Devonshire Street. 

1847. 



/^z,s^n 



REVIEW. 



"Domestic Slavery is the most prominent feature in the aris- 
tocratic COUNTENANCE OF THE PROPOSED CONSTITUTION." GoUVem- 

eiir Morris in the Convention of 1787. Madison Papers. 



Two years ago, Lysander Spooner, Esq. published an essay 
on the Unconstitutionality of Slavery. We shall but fulfill an old 
promise in reviewing the argument it contains. Events beyond our 
control have delayed us till now, which we regret only as it seems to 
have led some of Mr. Spooner's admirers to imagine that the delay 
proceeded from an unwillingness, on our part, to measure lances 
with so skillful an adversary. We exhort them, on the contrary, to 
believe that we have no innate antipathy to the idea of an Anti- 
Slavery Constitution; — that so far from being obstinately wedded 
to our own opinion, Mr. Spooner, or any one else, shall find in us 
a most ready, willing, and easy convert to a doctrine, which will 
restore to us the power of voting, — a right we much covet, — and 
a direct share in the Government of the country, a privilege we ap- 
preciate as highly as any one can. Only convince us fairly and we 
will outdo Alvan Stewart himself in glowing eulogy of this new- 
found virtue of the American Constitution. Indeed, if merely 6c- 
lieving the Constitution to be Anti-Slavery would really make it so, 
we would be the last to stir the question. If the beautiful theories 
of some of our friends could oust from its place the ugly reality of 
a pro-slavery administration, we would sit quiet, and let Spooner 
and Goodell convert the nation at their leisure. But alas, the os- 
trich does not get rid of her enemy by hiding her head in the sand. 
Slavery is not abolished, although we have persuaded ourselves that 
it has no right to exist. The pro-slavery clauses of the National 



4 REVIEW. 

Compact still stand there in full operation, notwithstanding our 
logic. The Constitution will never be amended by persuading men 
that it does not need amendment. National evils are only cured 
by holding men's eyes open, and forcing them to gaze on the hide- 
ous reality. To be able to meet a crisis men must understand and 
appreciate it. 

All that we have to do, as Abolitionists, with Mr. Spooner's ar- 
gument is to consider its influence on the Anti-Slavery cause. He 
maintains that the Judges of the United States Courts have the 
right to declare Slavery illegal, and he proposes that they should 
be made to do so. We believe that, in part, he mistakes fancy for 
argument; in part, he bases his conclusions on a forced interpreta- 
tion of legal maxims, and that the rest of his reasoning, where not 
logically absurd and self-contradictory, is subversive of all sound 
principles of Government and of public faith. Any movement or 
party, therefore, founded on his plan, would, so soon as it grew 
considerable enough to attract public attention, be met by the con- 
tempt and disapprobation of every enlightened and honest man. 
To trust our cause with such a leader is to insure its shipwreck. 
To keep, therefore, so far as our influence extends, the Anti-Slavery 
movement in its legitimate channel, to base it on such principles as 
shall deserve and command the assent of every candid man, to hold 
up constantly before the nation the mirror of its own deformity, we 
undertake the distasteful task of proving the Constitution hostile to 
us and the slave. 

It is but justice to Mr. Spooner to acknowledge that his perform- 
ance diflTers from most of those which have preceded it, not only in 
the ingenuity of the argument, but in the honest aim of the writer. 
With him "the wish" does not appear to have been " father to the 
thought." He did not first found a party and then stretch out both 
hands to clutch something that would sustain him in the right of 
voting at ail. He did not violate his own convictions, and then, 
obstinately shutting his eyes, cry out, " I do not see where I am in- 
consistent." His logic does not grow out of a lingering love of the 
ballot, or a secret desire to put " non-resistance hers du combat." 
He did not, in order to save a corrupt and trembling Church and 
shield it from the storm of deserved rebuke, endeavor to build an 
ark of political refuge out of legal scraps and disjointed and misun- 
derstood quotations. He seems to have persuaded himself of the 



REVIEW. S 

truth of his own theory, and then to have thrown it fearlessly out 
to the world, trusting in its truth to make it useful, and with no 
ulterior object or private end to serve. 

Before we touch on the argument of Mr. Spooner's Essay, we 
wish to call attention to two points : 

1st. Allowing, for the moment, as he claims, that the Constitu- 
tion contains no guarantee or recognition of Slavery — and grant- 
ing him, also, in his own words: 

"That the instrument was plain, and the people had common-sense; and 
those two facts cannot stand together consistently with the idea that there 
was any general or even any considerable misunderstanding of its meaning." 
— p. 126, 2d edition. 

We go on to ask, (of Abolitionists, not of Mr. Spooner,) how 
comes it that, as he all along confesses, Courts, Congress, and the 
people have uniformly warped and twisted the whole instrument 
aside and awry to serve and sustain Slavery? that the wljole Ad- 
ministralion of the Government, from its very commencement, has 
been pro-slavery? If the Constitution be guiltless of any blame in 
this matter, then surely there must be some powerful element at 
work in the Union itself, which renders it impossible for this to be an 
Anti-Slavery nation, even when blessed with an Anti-Slavery Con- 
stitution ; and thus the experience of fifty years proves Union itself, 
under any form, to be impossible without guilt. In such circum- 
stances, no matter what the Constitution is, whether good or bad, 
it is the duty of every honest man to join in the war-cry of the 
American Anti-Slavery Society, "no Union with Slaveholders." 
For if we could not escape the infamy and the sin of such a pro- 
slavery administration as ours has always been, under a Constitu- 
tion pure as Mr. Spooner describes this to be, then, as we never 
can have a better, we ought to give up the experiment. 

2d. As far as we can understand him, Mr. Spooner does not 
deny the universal Northern doctrine, that the Executive officers of 
the Government are bound, while they retain their situations, to 
obey and execute the laws in that manner and sense which the Su- 
preme Court decide and enjoin. [His views of the duty of the 
Supreme Court itself we have stated and shall soon discuss. But 
from the importance he attaches to them we have a right lo infer 
his concurrence in the opinion that the decisions of that Court are 
binding on the other departments of Government. For if they are 
1* 



O REVIEW. 

not so, of what consequence is it what those decisions are?] Of 
course no one has ever denied that the Supreme Court now con- 
strues the Constitution in a pro-slavery sense. This, then, is the 
law of the land until altered. Here again the position of the Ameri- 
can Anti-Slavery Society is untouched. For whatever be the real 
character of the Constitution, if those who now swear to support 
that instrument are bound to support it in the sense which the 
Courts give it, then, surely, no Abolitionist can consistently take 
such an oath or ask another person to do so. 

With neither of these points has Mr. Spooner himself anything 
to do. He, we believe, does not profess to be an Abolitionist; at 
least, in this essay he considers the question simply as a lawyer, 
without entering into its further bearings. We suggest them for 
the benefit of those Abolitionists who try to hide themselves behind 
him, and make a use of his argument which he never intended, and 
probably would not sanction. 

WHAT IS LAW? 

Mr. Spooner's first chapter is employed in answering the 
question, " What is law ? " 

" That law, I mean, which, and which only, judicial tribunals are morally 
bound, under all circumstances, to declare and sustain .'' 

"In answering this question, I shall attempt to show that law is an intel- 
ligible principle of right, necessarily resulting from the nature of man; and 
not an arbitrary rule, that can be established by mere will, numbers, or 
power." — p. 5, 2d edition. 

His conclusion is, "that law is simply the rule, principle, obli- 
gation, or requirement of natural justice." — p. 6. 
And finally he maintains : 

" If, then, law really be nothing other than the rule, principle, obligation, 
or requirement of natural justice, it follows that government can have no 
powers except such as individuals may rightfully delegate to it; that no law, 
inconsistent with men's natural rights, can arise out of any contract or com- 
pact of government : that constitutional law, -under any form of government, 
consists only of those principles of the written Constitution, that are consistent 
with natural laio, and mans natural rights ; and that any other principles, 
that may be expressed by the letter of any constitution, are void and not 
law, and all judicial tribunals are bound to declare them so." — p. 14, 
2d edition. 



WHAT IS LAW ? 71 

We might pass this chapter by without notice, as not concerning 
our inquiry, since Mr. Spooner not only conducts his argument 
afterward without reference to it, but distinctly allows that a defini- 
tion exactly the opposite of his is the one usually adopted by the 
people, by Courts of Justice, and by Governments. So that, 

" The very name of law has come to signify little more than an arbitrary 
command of power, without reference to its justice or its injustice ; its inno- 
cence or its criminality." — p. 9. 

Our only object is to abolish Slavery, and not to correct the 
fundamental ideas which men hold as to law or Government; and 
hence, all we have to do with law, is to find out what \i practically 
is, and then amend it if we can. We might, therefore, we repeat, 
pass this chapter by, taking law to mean what Mr. Spooner allows 
that our Judicial tribunals, our Government, and the general sense 
of the people have defined it to be, in the words he quotes from 
Noah Webster, " a rule of civil conduct prescribed by the Supreme 
power of a State, commanding what its subjects are to do, and 
prohibiting what they are to forbear." 

Or, as Heineccius describes it : 

" Civil laws are the commands of the Supreme power in a State." 

Or as Chancellor Kent defines it : 

" Municipal law is a rule of civil conduct prescribed by the Supreme 
power in a State." 

Or with Nathan Dane, the author of the ordinance of 1787 : 

" Municipal or civil law is the rule of municipal or civil conduct, pre- 
scribed by the Superior power in the State commanding what tiie Legislature 
deems right, and prohibiting what it deems wrong." — Mr. 6, p. 430. 

Or with Chief Justice Wilmot : 

" Statute law is the will of the Legislature in writing. Common law is 
nothing but statutes worn out by time." 

Or with the Roman law, from which Mr. Spooner takes some of 
his definitions : 

" What the people command, let that be law." — XII Tables of Rome 
" The will of the Prince — that is law." — Justinian's Inst. 
" The rule which each State chooses for itself, that is the law of such 
State."— Ibid. 



8 REVIEW. 

We might extend these ; but as they are only the varied express- 
ion of what Mr. Spooner alloics is the generally accepted defini- 
tion, further quotation is useless.* 

We shall, however, dwell awhile on this chapter. Mr. Spooner 
himself draws the line very clearly and fairly between his own 
speculations and what he allows to be the generally received 
definition, and never confuses the two. But that portion of the 
Abolitionists who are misled by his book, often find their greatest 
difficulty in the points discussed in this chapter. We shall 
endeavor, therefore, to unravel it a little, since the views it contains 
are not new, but have been floating a long time in the Anti-Slavery 
horizon ; and only spared, because no one has cared to notice them. 

Mr. Spooner's doctrine is, that " only what is just and right is 
law," This proposition is both true and false, simply because the 
word law has many meanings, like its Latin synonym, Jus, which 
Dr. Taylor says (Elem. Civil Law,) has forty significations. The 
most usual source of mistake in argument is the use of ambiguous 
terms. Now, Mr. Spooner's proposition is true of the law of 
Nature, which Cicero calls " right reason, the same thing at 
Athens as at Rume;" but it is false when applied to municipal, 
national, civil law, which is often a very different thing at Louis- 
ville from what it is at London. It is with this civil law, only, that 
we have to do in an argument like the present. Mr. Spooner's 
quotations, at the close of this chapter, relate mostly to the law of 
Nature, to law in its most comprehensive sense, or the science of 
Justice ; such is Hooker's sublime poetry, assuring us of law, 
" that her seat is the bosom of God, and her voice the harmony of 
the world." 



* If the reader asks why we do not cite Blackstone's definition, — "Mu- 
nicipal law is a rule of civil conduct, prescrihed hy the Supreme power in a 
State, commanding what is right, and prohibiting vviiat is wrong," (/ Comm, 
p. 44,) — we reply : because we think the last clause equivocal and superflu- 
ous, and, if taken in its obvious sense, false. So thought his commentator, 
Prof. Christian — see his note. As do his later commentators, Hovenden 
and Ryland. Bentham, also, and Austin. — Jurisprudence, p. 278, London., 
1832. 

So, evidently, did Stephens, Noah Webster, and Chancellor Kent, who 
have ail quoted the first half and omitted or changed the last. As did Mar- 
shall, 12 NVheaton, 3:52. So thought Nathan Dane, who, applying the first 
clause, has altered this latter one as above. Tomline, Law Diciionary, Art. 
Law, holds that Blackstone meant to he understood substantially as Dane 
has expressed it; and this seems probable, if we scrutinize the remainder of 
the chapter in which the definition occurs. 



WHAT I.S LAW 



This discassion, however, is a matter of no conseqaence to the 
argument. Leaving it, therefore, let us consider Mr. Spooner's 
main proposition. " Only thcjt which is just is law, and all judicial 
tribunals are bound so to declare : " taking law to mean the rule of 
civil afTiirs in a nation, the only sense of the term with which this 
argument has any thing to do. 

In the first place, a proposition may be justly suspected not to 
be sound, when the author confesses in regard to it, as Mr. Spooner 
does here, that — 

•' II rnny make «ad havoc with constitritinng and statute books," and "it 
in posMif/le, perhfips, thm thin doctrine would spare enough of our existing 
contititutioris to save our governmentH from the riefessiu- of a new 
organization ! ! I " 

Surely, mankind cannot be presumed to have so universally 
mistaken what they were about, as to have uniformly set up Gov- 
ernments, that were not Ugal in their own sen.se of the terra ! 
And as surely words must be interpreted according to the sense 
mankind choose to put upon them, and not according to the caprice 
of an individual. Mr. Spooner is at liberty to say, that much of 
what the world calls law is not obligatory, because it is not just in 
the eye of God ; and there all good men will agree with him. But to 
assert that because a thing is not right it is not low, as that term is 
commonly and rightfully used, is entering into the question of what 
constitutes the basis of government among men; and according to 
a man's theory of Government, will be his denial or assent to the 
proposition. Does Mr. Spooner mean to say merely, that a nation 
in making its laws has no right, in the eye of God, to per- 
petrate injustice ? We agree with him. It is a doctrine cer- 
tainly as old as Cicero, and may be traced through Grotius and 
Locke, and all writers on the subject, down to Jefferson and Chan- 
ning. Nations are bound by the same rule of right and wronrr, as 
individuals: agreed. Or does he mean to say that in settling what 
shall be the rule, of civil conduct, the voice of the majority is not 
final and conclusive, on its own officers, in all the departments of 
government 1 Then we difTer from him entirely, and assert, that, 
on his plan. Government is impossible. An individual mav, and 
ought to resign his office, rather than assist in a law he deems 
unjust. But while he retains, under the majority, one of their 
offices, he retains it on their conditions, which are, to obey and 



10 REVIEW. 

enforce their decrees. Tliere can be no more self-evident proposi- 
tion, than that, in every Government, the majority must rule, and 
their will be uniformly obeyed. Now, if the majority enact a 
wicked law, and the Judge refuses to enforce it, which is to yield, 
the Judge, or the majority? Of course, the first. On any other 
supposition, Government is impossible. Indeed, Mr. Spoouer's idea 
is practical no-governmentism. It leaves every one to do " what is 
ricrht in his own eyes." After all, Messrs. Goodell and Spooner, 
with the few who borrow this idea of them, are the real no-govern- 
ment men ; and it is singular, how much more consistent and sound 
are the notions of Non-resistants on this point, — the men who are 
generally considered, though erroneously, to be no-government 
men. 

According to Mr. Spooner, no provision would be law until it 
had secured the assent, not only of the Legislature, — the power 
appointed to make laws — but of the Judiciary also, — the power 
appointed only to construe and apply them. Apply this principle 
to our Union and it brings upon the present Constitution a similar 
disease to that which killed the old confederation, under which 
laws were of no practical value unless the several States cliose to 
execute them. According to Mr. Spooner, however, it is an evil , 
inseparable from all forms of Government, since every decision of 
the National Legislature must he perpetually subject to the discre- 
tionary power of every Court in the twenty-eight States! 

REMEDY FOR UNJUST LAWS. 

"Only that which is just, is law, and all judicial tribunals are 
bound so to declare." This is Mr. Spooner's proposition. Grant, 
for the purpose of this argument, that only what is just is law. We 
allow that no laws in support of Slavery are morally binding. Pos- 
sibly Mr. Spooner means the same thing, only expresses it more 
stronwly. The only important point at issue is — when Govern- 
ments enact such laws, what is the proper remedy 1 

This question has been answered in three ways. 

1st. Old-fashioned patriotism replies, with Algernon Sydney: 
" Resistance to tyrants is obedience to God." Mr. Spooner states 
that " the only duties any one owes a wicked Constitution, are dis- 
obedience, resistance, destruction." 



REMEDY FOR UNJUST LAWS. 11 

2d. Next comes the Christian rule, that too sanctioned by Locke, 
and by Plato — the course of the Quakers — the motto of the Ameri- 
can Anti-Slavery Society — "Submit to every ordinance of man" 
— but suffer any penalty rather than join in doing a wrong act; 
meanwhile, let your loud protest prepare a speedy and quiet revo- 
lution. 

3d. Thirdly comes Mr. Spooner's plan: 

"If the majority, however large, of the people of a country enter into a 
contract of government, called a constitution, by which they agree to aid, 
abet, or accomplish any kind of injustice, this contract of government is un- 
lawful and void — aud for the same reason that a contract of the same nature 
between two individuals, is unlawful and void. Such a contract of govern- 
ment confers no rightful authority upon those appointed to administer it." 
******* 

"Judicial tribunals, sitting under the authority of this unlawful contract 
or constitution, are bound, equally with other men, to declare it, and all un- 
just enactments passed by the Government in pursuance of it, unlawful and 
void. These judicial tribunals cannot, by accepting ofRce under a Govern- 
ment, rid themselves of that paramount obligation, that all men are under, to 
declare, if they declare anything, that justice is law; that Government can 
have no lawful powers, e.Kcept those with which it has been invested by 
lawful contract; and that an unlawful contract for the establishment of Gov- 
ernment, is as unlawful and void as any other contract to do injustice." 
******* 

" No oaths, which judicial or otiier officers may take to carry out and sup- 
port an unlawful contract or Constitution of Government, are of any moral 
obligation." — p. 9. 

And here begins the real and only iinportant dispute between us. 
The reader may forget, if he pleases, all we have said. Mr. Spoon- 
er's differences and our own, up to this point, are mere questions 
of theory. It matters little which side be adopted. His position 
now is : 

That laws and constitutions which violate justice, are void. They 
are as little binding in the eye of the law, as in the eye of God. 
They are legally as well as morally void. 

So far we agree loith him, or differ so slightly, that here we care 
not to dispute the matter. He goes on : 

A Judge holding offi,ce under such Constitutions is authorized 
and bound to treat them as void, and to decide cases, not according 
to them, but as his sense "of natural justice" dictates. 

Here wc differ from him, maintaining that the position of the 



12 



officers of such a Government diners from that of the private indi- 
vidual; their duty is to resign their posts whenever unwilling to 
fulfil the conditions on which they receive them, and then, as men, 
treat the laws as void. 

This question is not to be confounded with one somewhat simi- 
lar to it, and which has been sometimes discussed, especially in 
England, whether a Judge there may disregard an unjust statute? 
Our present question is different, for it should be remembered that 
in England, there is no written Constitution. Even if a Judge had 
such powers there, which he has not, it would, by no means fol- 
low, that he had the same under our form of Government. There 
the Judge swears, simply to bear true allegiance to the King. It 
might, therefore, with some plausibility, be argued, that having no 
test to which to bring acts of Parliament, except the rules of natural 
justice, Judges were authorized to declare them void when incon- 
sistent with those rules. Such a doctrine, however, is repudiated 
by the almost unanimous voice of the English law. 

But however it may be in England, here the case is different. 
Our Government is founded on contract. See, Pream. Mass. Cons. : 
J. Q,. Adams's Oration at Quincy, p. 17: Jay, C. J., 2 Dall. 471. 
So agrees Mr. Spooner : 

"The Constitution is a contract; a written contract, consisting of a cer- 
tain number of precise words, to vvliich, and to wliich only, all llie parties to 
it have, in theory, agreed. Manifestly neither this contract, nor the mean- 
ing of its words, can be changed, without the consent of all the parties to it." 
—p. 123. 

" A contract for the establishment of Government, being nothing but a 
voluntary contract between individuals for their mutual benefit, differs \xC 
nothing that is essential to its validity from any other contract between man 
and man, or between nation and nation." — p. 8. 

" Our constitutions are but contracts." — Note, p. 8. 

Under our Constitution, then, the people and the office-holder 
make a contract together. They grant him certain specified pow- 
ers, and demand of him certain specified duties. He deliberately 
looks over the catalogue (that is, the Constitution,) — assents to it, 
— swears that he agrees to it, and will perform his part, — and so 
takes office and acquires power. That poicer, Mr. Spooner thinks, 
he may retain while he refuses to perform the conditions on which 
he received it; and that power, granted him expressly, and only for 



REMEDY FOR UNJUST LAWS. 13 

the support of the Constitution, he is hound to use for the destruc- 
tion of that instrument! Mr. Spooner's ground is that, "immoral 
contracts are void." Granted; but if they are absolute nullities, 
then the Governments supposed to spring from ihem, do not exist, 
since they have nothing to spring from. Accordingly, the supposed 
Judge is no Judge, and has no authority to declare or decide any- 
thing. As Mr. Spooner says (p. 9,) " Such a contract of Govern- 
ment confers no rightful authority upon those appointed to admin- 
ister it." Of course he would not have a Judge use a wrongful 
authority, for any purpose. 

" Immoral contracts are not binding." Agreed. But are men at 
liberty to enter into agreements which they know at the time are 
immoral ? Of course not. Is not the mere fact that men swear to 
support the Constitution sufficient proof to the nation that they do 
not consider the clauses of that instrument immoral, but feel at lib- 
erty, and really intend, to carry them out? What higher evidence 
or pledge can a man give that he considers a contract moral, than 
taking an oath to execute and support it? 

Again, " immoral contracts are not binding." True. But if I 
receive a sum of money, on my promise to commit murder, and 
afterward, my moral sense awakens, and I refuse to do the deed, 
does that authorize me to retain the money ? Such a moral sense 
would be a most accommodating one ! and such godliness might 
well be " accounted gain ! " 

The rule plainly is that, if power is put into our hands on cer- 
tain conditions, and we become, y?*o;rt any cause, unable or unwill- 
ing to fulfill those co.iditions, we ought to surrender back the 
power to those who granted it. If, therefore, the Constitution is 
pro-slavery, (as Mr. Spooner and ourselves are now supposing it to 
be,) the Judges have agreed to do certain pro-slavery acts, and they 
must perform their whole contract, or yield up the power they re- 
ceived on that condition. Judges are the people's servants, em- 
ployed to do certain acts. If they cannot do those acts, let them 
" be no longer stewards." 

This argument seems to us conclusive as it stands. But Mr. 
Spooner's principles give it additional force. He says, (p. 99, 2d 
edition,) that 

"Office is not given to any one because he has a right to it, nor because 
it may be even a benefit to him. It is conferred upon him, or rulher 

2 



14 REVIEW. 

confided to him, as a trust, and solely as a trust, for the sole benefit of the 
people of tlie United States. The President, as President, is not supposed 
to have any rights in the office on his own account ; or any rights except 
what tl>e people, for their own benefit, and not for his, have voluntarily 
chosen to grant to him." 

If this be so — if the President, or Judge, has no rights but what 
the people have granted him, will Mr. Spooner affirm that the 
people ever granted to any Judge the right to disregard the pro- 
slavery clauses of their Constitution 1 If office be a *' trust, and 
solely a trust," is the trust-holder to execute his duty according to 
his own views, or according to the trust deed 1 

Again, Mr, Goodell had maintained that Governments have cer- 
tain inherent powers, as that, for instance, of abolishing Slavery, 
and executing justice, &,c. ; — that these enter into the very idea 
of a Government, and every Government possesses them, whether 
specifically granted to it or not. But Mr. Spooner (p. 8,) scouts 
as " an imposture, the idea of any necessary or inherent authority 
or sovereignty in our Government, as such," and maintains that 
they are nothing but " contracts." If then, they are only contracts, 
will he explain where Judges get a power which the other party to 
the contract never meant to give them 1 

II, therefore, Mr. Spooner or any one else could show us an 
English Judge, for instance, putting aside an act of Parliament 
because of its injustice, he would not even then reach our case. 
Let him show an English Judge holding himself authorized to dis- 
regard the terms of the union between Scotland and England, or 
between Ireland and England, and he will have advanced some- 
where within sight of the position of an American Magistrate 
under our Constitution. Even those, however, are not equally 
strong cases, for such a Judge has never expressly sworn to main- 
tain those compacts. 

The royal oath, to maintain " the church established," comes 
nearest to our case ; and it is well known with what scrupulous 
anxiety even the profligate George IV. clung to what he fancied his 
duty under that. 

" These Judicial tribunals," says Mr. Spooner, " cannot, by accepting office 
under a Government, rid themselves of the paramount obligation that all 
men are under to declare, if they declare amjthing, that justice is law." 

"If thcij declare anything;" that is a very significant "if." 
Was there a lurking doubt in the writer's mind whether our view 



NO-GOVERNMENTISM AND ANARCHY. 15 

was not the correct one? whether Judges had a right to " declare 
anything" in such circumstances? If there was, let him cherish 
it. True, such Judges cannot rid themselves, as men, " of the 
paramount obligation to declare, if they declare anything, that 
Justice is law." But it is as men, as simple individuals, uuits in 
the sight of God, that this "paramount obligation" rests upon 
them. God knows them not as Judges. Their only " paramount 
obligation," as Judges, is to do what they agreed to do when they 
were made Judges, or quit the bench. God does not require of 
any of his creatures to juggle their fellows out of the gift of power, 
and tiien use that power contrary to their promises, in order to 
serve humanity. That were to ask " robbery for burnt offering." 

NO-GOVERNMENTISM AND ANARCHY. 

But putting out of view this point of contract, between the people 
and their servants, we maintain that such a line of judicial duty is 
inconsistent with the existence of uniform and regular Government. 
It is the first step toward anarchy. 

"Only what is just and right is law." Granted, but who is to 
decide what is just and right ? We say that for the jmrpose of the 
civil government of any nation, the majority of that nation is to de- 
cide, and their decision is final, and constitutes, for that nation, law. 
Mr. Spooner thinks not; he thinks that each Judge is lo decide for 
himself and act accordingly. A uniform Government is impossible 
on this plan. Mr. Spooner himself admits as much at pp. 60, 61, 
122, 123. " Statutes," says Webster, " are but recommendations, if 
each man is to construe them as he pleases." Qiiot homines, tot 
sentential, ("many men, many minds.") Law would be one thing 
in Maine and another thing in Maryland — one thing to-day, another 
thino- to-morrow. And each day and each Court would think itself 
infallibly right. " Orthodoxy is my doxy," said the English Bishop. 
" By right reason," says Atterbury, " every one would be willing to 
mean his own." " Discourses about Natural Law," says another 
eminent writer, " are the fullest of mistakes and most liable to 
error." Let us look at it. In these United States some think that 
neither men nor nations have the right to make war — to take life 
by the gallows — to authorize the holding of the soil as individual 
property — to debar women from the right of voting. One not in- 



16 REVIEW. 

considerable sect holds that the magistrate should enforce theologi- 
cal orthodoxy. Will Mr. Spooner inform us on his principle what 
is law on each of these points ; and also what a Judge in such case 
is to pronounce? He will not, of course, maintain that a principle 
is right merely because the majority entertain it. A vote-receiver 
is silting at the ballot-box; a woman appears and offers him a vote. 
His own opinion is that natural law, " the rule of natural justice," 
obliges him to receive it. The majority have told him, by specific 
statute, to receive the votes of men only. Which way is he to act? 
Which is " law" to him? A Judge is sitting on the bench — the 
jury find the prisoner guilty of murder. His own opinion is that 
no Government has a right to take life — the majority have ordered 
him, by specific statute, in such case made and provided, to doom 
the culprit to the gallows. How is he to act? Which is " law " to 
him? We say to him, quit the bench rather than violate your con- 
science. Mr. Spooner instructs him that all laws inconsistent with 
natural justice are void, and that he is bound to stay there and de- 
clare them so. Accordingly as every man's own conscience is, for 
the time being, his highest and holiest guide, he must set up his 
own idea of right; and as of old, every man's foot rule was regula- 
ted by the length of the reigning King's foot, so now, Judges are to 
rev-erse the advice of Lord Coke, and " be guided by the crooked 
cord of discretion, and not by the golden metwand [measuring 
wand'l of the law." 

Cicero., i\ie pagan, maintains that for a merchant in time of fam- 
ine to conceal the fact that a plenty of grain will come to-morrow, 
and thus grind a high price to-day out of the starving people, is 
contrary to " Edtural justice." Christian jurists, Grolius, PufTen- 
dorf, and others, thick such conduct right. If such a sale is brought 
befire Mr. Spooner, 'to be enforced, which way will he decide? 
Which is law? this eternal, unalterable, unmistakable law, he so 
much praises. 

Gerrit Smith thinks the three-fifth slave basis an Anti-Slavery 
provision, "a bounty on Jtberty — an attempt to promote the Anti- 
Slavery cause." Mr. Spoojier thinks just the reverse. Which way 
shall the poor Judge, in search <.S natural law, interpret the clause? 
Jncidit in Scyllam cupiens vitare Charybdin. 

If he steers clear of Spooner one way, he is sure to run foul of 
Smith the other. How grateful will he be to our author for getting 



NO-GOVERNMENTISM AND ANARCHY. 



17 



him clear of the "old chaos of conflicting edicts," and introducing 
him to such a "natural, unalterable, universal, simple, intelligible 
principle," which supercedes all other law, and *' is necessarily the 
only law ! ! ! " 

The wisest men in all ages have held, that relying on the con- 
science or discretion of Judges is but another name for tyranny. 
Among the legal maxims collected by Lord Bacon there are two of 
sterling value: "It is miserable slavery to have the law vague or 
uncertain." " That is the best law, which (rusts the least to the 
discretion of a Judge, and he is the best Judge, who trusts least to 
himself" Lord Coke has even gone so far as to affirm that it is 
more important the law should be fixed and certain,- than that it 
should be just. " No man," said Sir Wm. Jones, " woufd ever know 
how to act, and no lawyer how to advise, unless courts were bound 
by authority, as firmly as the Pagan deities were supposed to be 
bound by the decrees of fate." " Equity," said the learned Selden, 
"is a roguish thing; for law we have a measure, — know what to 
trust to; equity is according to the conscience of him that is chan- 
cellor, and as that is larger or narrower, so is equity. It is all one 
as if they should make the standard for the measure we call a foot, 
a chancellor's foot ; what an uncertain measure would this be ! 
One chancellor has a long foot, another a short foot ; a third an in- 
different foot ; it is the same thing with a chancellor's conscience." 
"The discretion of a Judge," said Lord Camden, that learned and 
pure jurist, the early and tried friend of our Revolutionary fathers, 
"is the law of tyrants; it is always unknown, different in different 
men ; it is casual, depends on constitution, temper, passion. In 
the best it is oftentimes caprice — in the worst, it is every vice, 
folly and passion, to which human nature is liable." 

See also Kent's Comm., 1. 476. Story's Equity, 1. 12. 

It was on this principle of construing laws according to our own 
ideas of justice that Georgia acted, when, in defiance of the Gov- 
ernment, she robbed the Indians and imprisoned their missionaries; 
as does Carolina when, in spite of the Constitution, she imprisons 
colored seamen and banishes Samuel Hoar under penalty of jail 
and fine. The supreme authority of individual judgment and con- 
science is sound doctrine in matters of religion : and what is the 
result? The healthful emulation of a thousand rival sects. Intro- 
duce the same principle into government, and instead of one system 
2* 



18 REVIEW, 

of laws and one interpretation, we should have, as in the Case of the 
Bible, a thousand ; and uniform government would be impossible. 

If Mr. Spooner, to escape this dilemma, shall explain his princi- 
ple to mean that a Judge is to decide, not according to his own in- 
dividual idea of right, but the general sense of the age or nation in 
which he lives, we hardly care to dispute such a proposition with 
him; — for it is of little practical importance; since in the words 
of its statute-book will each magistrate always find the best, if not 
the only, evidence of what his nation thinks just and right. " The 
laws," says Aristotle, " are the morals of the State and the charac- 
ter of the whole people taken collectively." If Mr. Spooner should 
feel disposed "to appeal from the decision of one nation to the gen- 
eral sense of Christendom, he will find that there never was a sin, 
which any Judge, desirous of supporting it, could not find abund- 
ance of philosophers to uphold him in thinking right; and surely 
Slavery at present, finds many such, both in Church and State. 
Hence, on either plan there could be no uniform and regular Gov- 
ernment. 

LEGAL AND JUDICIAL OPINIONS. 

We shall conclude our discussion of this point by showing that 
the almost unanimous, if not unanimous, voice of lawyers and judi- 
cial tribunals repudiates this power. Our extracts will be drawn 
from as many different sources as possible, because it has been a 
favorite course with Liberty party debaters and others to maintain 
that all acts of Parliament, or of any legislative body, contrary to 
reason and justice are void, and that Judges may treat them as such 
— a proposition identical with Mr. Spooner's, and clearly not 
sound. 

The authorities which follow are not however intended for Mr. 
Spooner, since, (p. C2,) he candidly states it as the settled doctrine 
of all the Courts, that they possess no authority to overrule wicked 
laws. We adduce them merely to complete our view of the sub- 
ject, and for the sake of those who are not so wise or so candid as 
Mr. S. in this particular. 

This doctrine is usually sustained by disconnected quotations 
from Blackstone, among which the following generally occupies 
the first place : 



LEGAL AND JUDICIAL OPINIONS. 19 

"This law of nature, being coevat with mankind, and dictated by God 
himself, is of course superior in obligation to any other. It is binding over 
all the globe, in all countries, and at all times : no human laws are of any 
validity, if contrary to this; and such of them as are valid, derive all their 
force, and ail their authority, mediately or immediately, from this original.'* 
—Blackstone, Vol. 1, p. 41. 

Mr. Justice Coleridge, in his edition of Blackstone, says, that 
" here the author means merely that a law, contrary to nature, has 
no binding force on the conscience." 

It will be observed that Blackstone only asserts that bad laios are 
void, without touching the question of the remedy in such case, or 
whether judges may declare and treat them so. His able com- 
mentator, Prof. Christian, in a note on the passage, discusses this 
point, and decisively rejects the doctrine. He says : 

"If an act of Parliament should, like tlie edict of Herod, command all 
children under a certuin age to be slain, the Judge ought to resign his office 
rather than be auxiliary to its execution ; but it could only he declared void 
by the same legislative power by which it was ordained." 

"With this, the othef commentators, Chitty and the rest, agree. 
Sedgwick unites with them in the same opinion. Woodeson, 
Blackstone's second successor in his professorial chair, adds his 
assent in these words : 

" We cannot expect that all acts of legislators will, or can be, entirely 
good, or ethically perfect ; but if their proceedings are to be decided upon 
by their subjects. Government and subordination cease." — Chiltij's Black- 
stone, Note, p. 41. — Wood's El. Jur.,p. 81. 

Blackstone himself, in a subsequent page of his work, distinctly 
denies the doctrine which some might infer from the general terras 
he had used above. On the 9ist page of his first volume he says : 

" I know it is generally laid down more largely, that acts of Parliament, 
contrary to reason, are void. But if the Parliament will positively enact a 
thing to be done which is unreasonable, I know of no power, in the ordinary 
forms of the Constitution, that is vested with authority to control it ; and 
the examples usually alledged, in support of this sense of the rule, do none 
of them prove, that, where the main object of a statute is unreasonable, the 
Judges are at liberty to reject it ; for that were to set the judicial power 
above that of the Legislature, which would be subversive of all Government. 
» ir » * » « jj- ^g could conceive it possible for the Parliament to 
enact that a man should try as well his own causes as those of other persons, 
there is no court that has power to defeat the intent of the Legislature, 



20 KEVIEW. 

when couched in such evident and express words, as leave no doubt whether 
it was the intent of the Legislature or not." 

Chancellor Kent, also, of New York, the highest living authority, 
though citing and praising the few old cases which sustain a differ- 
ent doctrine, concludes with Blackstone, thus : 

" It is a principle, in the English law, that an act of Parliament, delivered 
in clear and intelligible terms, cannot be questioned, or its authority con- 
trolled in any court of Justice. When it is said in the books that a statute 
contrary to natural equity and reason, or repugnant, or impossible to be per- 
formed, is void, the cases are understood to mean that the courts are to give 
the statute a reasonable construction. They will not readily presume, out 
of respect and duty to the lawgiver, that any very unjust or absurd conse- 
quence was within the contemplation of the law. But if it should happen 
to be too palpable in its direction to admit of but one construction, there is no 
doubt, in the English laio, us to the binding efficacy of the statute. The will 
of the Legislature is the supreme law of the land, and demands perfect 
obedience." — Kent's Comm. l.p. 447. 

Locke lays down the same principle substantially, when he says : 
"In all cases while the Government subsists, the Legislature must 
be supreme. When that transgresses its bounds, the right of rev- 
olution begins." And Paley also : 

" There necessarily exists in every Government a power, from which the 
Constitution has provided no appeal, absolute, omnipotent, uncontrollable, 
arbitrary, despotic. This person or assembly is the supreme power of the 
State * * * the Legislature of the State." — Mor. and Pol. Phil., Bk.H, ch.6. 

With this Blackstone agrees. See Comm. 1. pp. 161, 186: 

" Where the law is known and clear, though it be unequitable and incon- 
venient, the judges must determine as the law is, without regarding the 
unequitableness or inconveniency. Those defects, if they happen in the 
law, can only be remedied by Parliament; therefore we find many statutes 
repealed, and laws abrogated by Parliament as inconvenient, which before 
such repeal or abrogation, were in the Courts of Law to be strictly ob- 
served." — Vaughan's Rep., pp. 37, 38. 

Says the United States Circuit Court : 

"We cannot declare a legislative act void, because it conflicts with our 
opinions of policy, expediency, or justice. » * * 

"The remedy for unwise or oppressive^ legislation, within constitutional 
bounds, is by an appeal to the justice and patriotism of the representatives 
of the people. If this fiiils, the people, in their sovereign capacity, can 
correct the evil ; but courts cannot assume their rights. 



LEGAL AND JUDICIAL OPINIONS. 21 

" That would submit laws to a test as fallible and uncertain as all rules 
must be, which have not their source in some certain and definite standard, 
which varies neither with times, circumstances, or opinions. * 

" There is no paramount and supreme law which defines the law of na- 
ture, or settles these great principles of legislation, which are said [that is, 
by the counsel in this case,] to control State Legislatures, in the exercise of 
the powers conferred on them by the people in the Constitution. 

" If it is once admitted that there exists in this Court a power to declare 
a State law void, which conflicts with no constitutional provision, if we 
assume the right to annul them for their supposed injustice, or oppressive 
operation, we become the makers and not the expounders of Constitutions. 
Our opinions will not be a judgment on what was the pre-existing law of 
the case, but on what it is, after we shall have so amended and modified it as 
to meet our ideas of justice, policy, and wise legislation, by a direct usurpa- 
tion of legislative powers, and a flagrant violation of the duty enjoined on 
us by the Judiciary act." — 1 Baldwin, C. C. R. p. 74. 

Mr. Justice Iredell, of the Supreme Court of the United States, 
says : 

" Some speculative jurists have held that a legislative act against natural 
justice must, in itself, be void, but I cannot think that under such a (iovern- 
ment, as (that of England,) any court of Justice would possess a power to 
declare it so." 

After quoting Blackstone, to sustain that position, he adds : 

" If any act of Congress violate constitutional provisions it is void; * » * 
If, on the other hand, the Legislature of the Union, of any member of the 
Union, shall pass a law within the general scope of their constitutional power, 
the court cannot pronounce it to be void merely because it is, in their judg- 
ment, contrary to .the principles of natural justice. The ideas of natural 
justice are regulated by no fixed standard; the ablest and purest men have 
difl'ered upon the subject."— 3 Dallas's Rep., p. 399. 

" If the Legislature should pass a law in plain, unequivocal, and explicit 
terms, within the scope of their constitutional powers, I know of no author- 
ity in this Government to pronounce such an act void, merely because, in 
the opinion of the Judicial tribunals, it was contrary to the principles of 
natural justice. For this would be vesting in the Court latitudinarian powers 
which might be abused, and would necessarily lead to collision between the 
Legislative and Judicial departments, dangerous to the well-being of society, 
or at least, not in harmony with the structure of our ideas of natural gov- 
ernment. Justice is regulated by*no certain or fixed standard, so that the 
ablest and purest minds might sometimes diff'er with respect to it. * * * 
Necessity dispenses with general principles. The Legislature must be the 
judges when that necessity exists."— 2 Raicle's (Pennsylvania) Reports, 
p. 374. 



22 REVIEW. 

The Supreme Court of the United States affirm the same doc- 
trine, in a sentence which Mr. Spooner makes the corner-stone of 
his book : 

"Where rights are infringed, where fundamental principles are over- 
thrown, where the general system of the laws is departed from, the legislative 
intention must be expressed with irresistible clearness, to induce a court of 
justice to suppose a design to effect such objects." — United States vs. Fisher 
et. al. 2 Crunch, p. 390. 

" This language of the Supreme Court," says Mr. Spooner, " admits, 1st, 
that the preservation of men's rights is the vital principle of law ; and 2d, 
that courts — and the Supreme Court of the United States in particular — 
will trample upon that principle at the bidding of the Legislature, when the 
mandate comes in the shape of a statute of such ' irresistible clearness,' that 
its meaning cannot be evaded." 

Lord Mansfield recognizes the same principle in that sentence, 
which forms the other bujwark of Mr. Spooner's argument. In 
the "Sommersett" case,' Lord Mansfield said, speaking of the 
acknowledged sin of Slavery : 

" So high an act of dominion must be recognized by the law of the country 
where it is used. * * * The state of Slavery is of such a nature, that it 
is incapable of being introduced on any reasons, moral or political — but 
only positive law, which preserves its force long after the reasons, occasion, 
and time itself from whence it was created, is erased from the memory. It 
is so odious, that nothing can be suffered to support it but positive law." — 
HoicelVs State Trials, 2Q.p. 1. 

Positive law, then, can so establish even Slavery, that courts 
must treat it as legal. 

The same doctrine shines out in all the cases, either on this side 
the ocean or in England, in which the Slave-trade has been 
brought in question. Certainly, here would be a case in which, if 
anywhere, a Judge would use the power, if he had it, to treat bad 
laws as void. Still, no Judge, whatever his private opinion, has 
usurped the right to overrule, on that account, the law of nations, 
which holds that trade to be lawful. Sir Wm. Scott, one of the 
highest, if not the highest, authority among recent English Judges 
in his department, holds the following language, in a case where 
the question of that trade was before him, and in which he decided 
that the Slave-trade was not a crime by the law of nations : 

"I must remember that in discussing this question, I must consider it not 
according to any private moral apprehensions of my own, (if I entertained 
them ever so sincerely,) but as the late considers it. * * An act must be le- 



LEGAL AND JUDICIAL OPINIONS, 23 

gaily criminal, because neither this Court nor any other can carry its private 
apprehensions, independent of law, into its public judgments, on the quality 
of actions. It must conform to the judgment of the law upon tiiat subject, 
and acting as a Court, in the administration of law, it cannot attribute crimi- 
nality to an act where the law imputes none. It must look to the legal stand- 
ard of morality on a question of this nature." — 2 Dodson, Adm.Rcp. p.21Q. 

C Justice Marshall says, in a similar case : 

"That it (the Siave-Trade) is contrary to the law of nature, will scarcely 
be denied. * * * Whatever might be the answer of a moralist to thia 
question, a jurist must seek its legal solution in those principles of action 
wiiich are sanctioned by the usages, the national acts, and the general assent 
of the world, of which he considers himself a part. * * » A jurist could 
not say that a practice thus supported was illegal." — Antelope, 10 IV/ieaton, 
p. 66. 

See, also Lord Mansiield, 1 T. R., 313 : Judge Story, 1 Gall., G6 : Judges 
Best and Bayley, 3 B. «fcA.,353: Lord Hardwick, Dwarris, 785 : C.J.Shaw 
in the "Med. Case," 18 Pick. Rep., 193 : Dwarris, 645 : Blackstone, 4. 11 : 
Madison, cited in Story's Comni., 3 422: Amos' Fortescue, 198-200: 
8 Wheaton, 543: 4 Howard, 572: 2 Howard, 197: 8 Bingh., 515, 557: 
1 Kent, 468. 

I know that there are a few early cases, and a few rash assertions 
of Lord Coke, plausible perhaps in a Government like the English, 
where, as there exists no written Constitution, it might possibly be 
argued that the courts had a right to bring all laws to the test of 
tliose great principles of common sense and common justice, which 
form the only thing that can be called a foundation for British law. 
But Iie7-e we have a specific, definite, limited, inrittcn Constitution. 
It contains ALL the principles which the people, the nation, have 
agreed shall form the foundation of our national law. The only 
test, therefore, to which our courts have any right to submit the 
action of the Legislature is, to ask, is it constitutional? If so, it is 
legally binding on them — no matter how unjust or how unreason- 
able it is. Such is the frame-work of Government under which we 
live. 

But of even this assertion of Coke, Lord Chancellor Ellesmere, 
his contemporary, has remarked, that it is, 

"A paradox which derogateth much from the wisdom and power of Par- 
liament, that when the three estates, King, Lords, and Commons, have spent 
their labor in making a law, three Judges on the bench, shall destroy and 
prostrate their pains, advancing the reason of a particular court above the 
judgment of all the realm. Besides, more temperately did that reverend Chief 
Justice Herle, temp. Ed. HI. deliver his opinion, cited by Coke, 8 R. 118. 



24 



when lie said, some acts of Parliament are made against law and right, which 
THEV THAT MADE THEM, perceiving, would not put them into execution ; for 
it is mantis congruum (more fit) that acts of Parliament should be corrected 
by the same pen that drew them, than be dashed to pieces by the opinion of 
a few Judges." — (Quoted by Dicarris, p. G43. 

And further, still, Lord Coke qualifies the general language he 
had used when he elsewhere holds : 

" That Judges are not to be encouraged to direct their conduct by the 
crooked cord of discretion, but by the golden metwand of the law ; that is, 
not to construe statutes by equity, but to collect the sense of the Legislature 
by a sound interpretation of its language according to reason and grammati- 
cal correctness, and to be controlled by the common Imc." — Dicarris on 
Statutes, pp. 645, 703. 

Dwarris, a learned and distinguished writer, in his late able work 
on " Statutes," sums up the matter thus : 

" The general and received doctrine certainly is, that an act of Parliament, 
of which the terms are explicit and the meaning plain, cannot be questioned, 
or its authority controlled in any Court of Justice," and "where the mean- 
ing is plain, to regard consequences in the interpretation, would be assuming 
legislative authority." 

For Judges to mould statutes according to their sense of right 
would suppose the Legislature, 

" To have abdicated its functions and delegated its power and duties to 
the Judges." — pp. G46, 720, 755. 

To detain the reader one moment longer with the example of 
another nation, let us add that the French law, generally consider- 
ed much more loose on this point of judicial duty, is substantially 
the same with what we have been quoting. Ii allows the Bench to 
consult equity and use its individual discretion only on those points 
where the law is silent. 

" Si Von manque de loi ilfaut consulter Vusagc ou I'cquitd. L'cquiti est le 
retour a la loi nuturelle, dans le silence, Vopposition ou Vobscurite des lois 
positives." 

" Le pouvoir judiciaire ctahli pour appliquer les lois, a bcsoin d'etre dirigi 
dans cette application par certuines regies. Elles sont idles que la raison 
particuUere d'aucun komme nc puisse jamais prdvaloir sur la loi, raison pub- 
lique." 

(Where there is no law, consult custom or equity. Equity is the return to 
natural law in case of the silence, self-contradiction, or obscurity of statutes. 
Judges appointed to apply the laws, must be guided by fixed rules. These 



MR. spooner's argument. 25 

are such that the conscience of an individual can never be allowed to over- 
rule the law, which is the national conscience.) Quoted by Dwarris,p. 

787. 8. 

Are we not, then, borne out in our assertion that neither any prac- 
tical theory of Government, nor the recorded opinions of Statesmen 
or Jurists countenance the doctrine of this Essay, that Judges are 
the proper persons to remedy, by overruling, the bad laws of a State. 
On the contrary all combine to point us to the duty of submission, 
or to the ultimate and extreme right of Revolution, as the appro- 
priate course in the circumstances ; and allow the Judge no choice 
but to apply the laws, as they are handed him by t,he Supreme 
Power, or to vacate his seat. 

Indeed the most famous definition of Civil Liberty makes it con- 
sist in the " being governed only by knozim, pre-constituted, inflexible 
rules." What becomes of this if the decisions of the Court are to 
vary as fast as the moral sense of the Bench rises higher and higher 
in its perception of right and wrong ? On this plan justice becomes 
as much " matter of accident," as Madame de Stael told Alexander 
Liberty was, under a despotism. . To Mr. Spooner's doctrine we 
may apply what was said on another occasion : 

" If these principles prevail there are no longer any Pyrenees. Every 
bulwark and barrier of the Constitution is broken down ; it becomes tabula 
rasa., carte blanche., for every one to scribbls on what he pleases." 



MR. SPOONER'S ARGUMENT. 

Leaving the question whether Law, properly speaking, can estab- 
ish Slavery, Mr. Spooner next attempts to show that it has never 
actually been established by law in this country. For this purpose 
he examines the written Constitutions of the several States and of 
the Union. 

"In making this examination, [he says, p. 15,] I shall not insist upon the 
principle of the preceding chapter, that there can be no law^ contrary to nat- 
ural right; but shall admit, for the sake of the argument, that there may be 
such laws. I shall only claim that in the interpretation of all statutes and 
constitutions, the ordinary legal rules of interpretation be observed. The 
most important of these rules, and the one to which it will be necessary 
constantly to refer, is the one that all language must be construed '■strictly ' 
in fiivor of natural right. The rule is laid down by the Supreme Court in 
the United States in these words, to wit: 'Where rights are infringed, 

3 



26 REVIEW, 

where fundamental principles are overthrown, where the general system of 
the laws is departed from, tiie legislative intention must be expressed with 
irresistible clearness, to induce a court of justice to suppose a design to effect 
Buch objects.' " — 2 Crunch, p. 390. 

The following are the clauses in the United States Constitution 
universally supposed to refer to and recognize Slavery : 

"Art. I. Sec. 2. Representatives and direct taxes shall be apportioned 
among the several States, which may be included within this Union, ac- 
cording to their respective numbers, which shall be determined by adding 
to the whole number of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, thrce-ftflhs of all other 
persons. 

Art. I. Sec. 8. Congress shall have power * * • to suppress in- 
surrections. 

Art. I. Sec. 9. The migration or importation of such persons, as any 
of the States now existing shall think proper to admit, shall not be prohib- 
ited by the Congress prior to the year one thousand eight hundred and 
eight, but a tax or duty may be imposed on such importation, not exceeding 
ten dollars for each person. 

Art. IV. Sec. 2. No person held to service or labor in one State, 
under the laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or labor, but shall 
be delivered up on claim of the party to whom such service or labor may be 
due. 

Art. IV. Sec. 4. The United States shall guarantee to every State in 
this Union a republican form of government ; and shall protect each of them 
against invasion ; and, on application of the Legislature, or of the Ex- 
ecutive, (when the Legislature cannot be convened,) against domestic 
violence." 

The first of these clauses, relating to representation, gives to ten 
inhabitants of Carolina equal weight in the Government with forty 
inhabitants of Massachusetts, provided they are rich enough to 
hold fifty slaves ; — and accordingly confers on a slaveholding 
community additional political power for every slave held among 
them, thus tempting them to continue to uphold the system. 

Its result has been, in the language of John Q,uincy Adams, 
"to make the preservation, propagation, and perpetuation of Sla- 
very the vital and animating spirit of the National Government ; " 
and again, to enable " a knot of slaveholders to give the law and 
prescribe the policy of the country." So that " since 1830, Sla- 
very, slave-breeding, and slave-trading, have formed the whole 
foundation of the policy of the Federal Government." The second 



INTENTIONS OF THE PEOPLE. 27 

and the last articles relating to insurrection and domestic violence, 
perfectly innocent in themselves — yet being made with the fact 
directly in view that Slavery exists among us, do deliberately 
pledge the whole national force against the unhappy slave if he 
imitate our fathers and resist oppression, thus making us partners 
in the guilt of sustaining Slavery. The third is an express tolera- 
tion of the Slave-trade till ISOS, leaving it optional with Congress 
whether to abolish or not afterwards. The last clause is a promise 
on the part of the whole North, to return fugitive slaves to their 
masters; a deed which God's law expressly condemns, and which 
every noble feeling of our nature repudiates with loathing and 
contempt. 

Mr. Spooner's argument may be briefly stated thus: 

1st. The people never intended to recognize or guarantee 
Slavery in the National Constitution. 

2d. If such was their intention it was never effected; for that 
instrument, legally interpreted, contains no recognition or guar- 
anty of the Institution. 

3d. Such recognition, if it exists, is void, and wholly inopera- 
tive, since there is no legal Slavery in any of the States to which 
it can refer. 

In our review we shall follow the order thus briefly sketched, 
rather than the one adopted by Mr. Spooner, as it will enable us to 
say all we wish in a smaller space. 

INTENTIONS OF THE PEOPLE. 

And first, the intentions of the people. It is very convenient 
for Mr. Spooner to make light of the meaning which the people 
attached to the Constitution in 1789, and since, as of no practical 
value ; though he is ready to allow that the intentions of the 
adopters of the Constitution when legally shown from the Instru- 
ment itself, taken as a whole, are binding and conclusive. It is a 
point we can afford to spare, this of the meaning affixed to the In- 
strument by the people themselves. We are perfectly willing at 
any time to waive it and discuss the strict legal effect of the written 
Instrument, without aid from collateral history or national circum- 
stances. But it is idle in an argument of this kind to keep out of 
sicrht a view which common sense, the nature of the case, and the 



28 REVIEW. 

maxims of law, demand shall make a part of it. We shall, there- 
fore, devote a brief space to the point. 

It will be remembered that Mr. Spooner is now professing to 
argue a law question, as such, on strictly /foaZ principles, referring 
to legal authorities and rules as tests of the correctness of his opin- 
ions. In interpreting the Constitution the Supreme Court have 
made use of the rules usually adopted. His object is to show, not 
that the Court ought to lay down any new rules, but that they 
should carry out those already established, and according to these, 
he thinks that Court is bound to, declare Slavery illegal even 
within the several States. 

Bearing this in mind let us see what these rules are, for, of 
course, the question is not to be decided by looking alone at that 
one rule of the Court, which Mr. Soooner has quoted, and made 
the corner-stone of his argument. To judge fairly it is necessary 
to look over the whole ground. Let us then open the records of 
the Supreme Court. We shall find that following the example of 
all other Courts, the dictates of good sense, and of all the authori- 
ties, ii has uniformly allowed great weight to the contemporane- 
ous interpretation of the Constitution, to the understanding of 
the nation when it has been universal : according to the oft-re- 
peated maxim of Lord Coke, " Contemporanea expositio est optima 
et forthsima in lege." ( Cotemporaneous exposition is of great 
weight and authority in the law.) The reason of this rule is very 
evident. Where the words of a statute are plain and clear, and 
admit but of one meaning, there is, of course, no room for inter- 
pretation ; they speak for themselves. Where they will equally 
well admit of two meanings, our object must be to ascertain which 
of these the makers intended they should bear. If that intention 
can be ?f^fl//y discovered, it is to prevail whether it be just or 
unjust. See 1 Kent, 468 : Duarris, 689 : 6 A. & E. 7 : 9 A. & 
E. 980. This we consider Mr. Spooner to allow. Now this inten- 
tion is to be discovered by considering the language of the particular 
clause and of the context — the design of the law — the situation of 
the country at the time, its institutions and circumstances. If we 
can discover which of the two constructions was supposed to be the 
true one at the time, and which has been used and practised upon 
from the very making of the law, this will go far to show which 
the makers intended should be affi.xed to it. Contemporaneous 



INTENTIONS OP THE PEOPLE. 4sf 

practice then is one of the most convincing commentaries on the 
language of statutes. No doubt as Marshall, quoted by Spooner, 
says, we are to discover the intentions of the lawmaker from the 
words he uses ; but words, when doubtful and ambiguous, are to 
be interpreted by the context, by the object sought, and by con- 
temporaneous usage. The reader may consult on this point Story's 
Comm. vol. 1, bk. 3, c. v. Blackstone, 1. 59, 60 — Rutherforth — 
Dwarris— C. J. Tindall, 5. Scott, 1037. Justice Coleridge, 6 A. 
&L E. 7. Coke's Inst. 2. 11. Kent, 1. 462. 18 Pick. 193. 

Penal statutes, also, are to be construed strictly, — yet Courts 
are not prevented by this rule, from inquiring in such cases into 
the intent of the Legislature. See 1 Paine, 32, &,c. 

No work is oftener quoted by the Supreme Court than the "Fed- 
eralist," as showing the sense in which the Constitution was adopt- 
ed; in the words of Chief Justice Marshall: 

" Great weight has always been attached, and very rightly attached to con- 
temporaneous construction. The opinion of the Federalist has always been 
considered as of great authority, &c., &c. A contemporaneous exposition 
certainly of not less authority than that just cited is the Judiciary Act." 6 
Wheaton, 418-20. In Wheaton, 1. 304, the Court alludes at length to the 
' weight of extemporaneous exposition by all parties, the acquiescence of 
State Courts,' " «&c. 

9 Wheaton, 1. Chief Justice Marshall says, speaking of one of 
the powers of Congress : 

" If, as our whole course of legislation on this subject shows, the power of 
Congress has been universally understood in America to comprehend navi- 
gation, it is a very persuasive, if not conclusive argument to prove that the 
construction is correct." 

"Contemporary practice is to be consulted," says Rutherforth, a Scottish 
writer, always quoted with deference on this subject, "that which prevailed 
among the people when the law was made and immediately after it, — the 
one as showing why it was made, — the other how it was understood by 
those who had the best means of knowing its meaning." 

" When there is any doubt," says Rutherforth, cited and approved by 
Story, " light may be obtained from contemporary facts or expositions, from 
known habits, manners and institutions." — Story's Comm. 1. 385. 

" In the construction of statutes and local laws it is necessary to refer to the 
history and situation of the country to ascertain the reason as well as the 
meaning of their provisions, to enable the Court to apply the different rules 
for construing them." — 1 Wheaton, 115. 

"In doubtful cases usage may be safely recurred to, to ascertain the mean- 
ing of the Legislature." — 2 Overton, 157. 

3* 



30 REVIEW. 

As the old legal maxim tells us : " Optimus Icgum interpres con- 
suetudo " (Usage is the best interpreter of laws.) 

«'If in any case doubt arise from the terms employed by the Legislature, it 
has always been held a safe means of collecting the intention to call in aid 
the ground and cause of making the statute." — C. J. Tindal, 8 Jur. 795. 

*' The meaning of things spoken and written must be as hath been con- 
stantly used." — Vaiigh, 169. Bac. Mr. Stat. 

" Great regard ought, in construing a statute, to be paid to the construction 
which the sages of the law, who lived about the time or soon after it was 
made, put upon it, because they were best able to judge of the intention of 
the makers." — Coke, cited by Dwarris, 693. 

"The Court will gather the intention of the Legislature from 
the language used in the act itself, comparing it, when an¥ ambi- 
guity exists, with the laws on the same subject, and looking, if 
mecessary, to the public history of the times in which it was pass- 
ED." — Supreme Court, U. S., 3 Hoicard, 24. 

Again, we are told by the Federalist, 83, and the doctrine is con- 
firmed by Judge Story, 1 Comm. 435, that : 

" Precise legal maxims are inapplicable to a constitution of Government. 
In relation to such a subject the natural and obvious sense of its provisions, 
apart from technical rules, is the true criterion of its construction." 

The same rule is laid down by C. J. Tilghman in 3 Sergeant & 
Rawle, 69 : 

" Conventions intended to regulate the conduct of nations are not to be con- 
Btrued as articles of agreement at common law. In these, strict rules of con- 
struction may be adhered to, and individual inconvenience is richly compensa- 
ted by general good. But where multitudes are affected by the construction of 
an instrument, great regard should be paid to spirit and intention. In de- 
ciding this question, then, it will be important to consider the situation of 
the United States, at the time of framing their present Constitution, and the 
probable intent of the makers." 

We all know very well that the Constitution is a peculiar instru- 
ment — neither wholly a statute nor wholly a contract, but partaking 
of the nature of both. The rules applicable then to contracts, as 
distinct from laws, have a place here: and the first of those 
named by Blackstone is " Verba intentioni dcbent inserviri." 
(Words must effect the intention of the parties.) 

Next in importance comes Paley's rule. " Promises are to be 
performed in that sense in which the promiser apprehended at the 
time that the promisee received it." For which see Chitty on Con- 
tracts. 



INTENTIONS OP THE PEOPLE. 31 

Judge Story, Comm. 2. 528, speaking of a protective tariff, points 
to this rule : 

"If the Constitution was ratified under the belief, sedulously propagated 
on all sides, that such protection was afforded ; would it not now be a fraud 
upon the whole people to give a different construction to its powers ?" 

The reasonableness of this is so self-evident, that it seems un- 
necessary to enlarge upon it. 

We submit, of course, to the rule which Marshall lays down, and 
which Mr. Spooner makes the corner-stone of his book, that of two 
meanings, one honest and the other wicked, the Court will, if pos- 
sible, adopt the former. But the point to which we draw attention 
is, that if the other parts of the law, its object, and its contempo- 
raneous construction afford irresistible evidence that the Legisla- 
ture intended to make a wicked law, the Courts acknowledge it to 
be their duty to yield. In other words, contemporaneous expositions 
and uninterrupted acquiescence are one of the means the Court has 
always used to arrive at that irresistible clearness and certainty on 
which Mr. Spooner depends so much. Judge Story, Comm. 2. 526, 
speaking of the disputed power of protection to manufacturers, 
says : 

"The terms of the Constitution are sufficiently large to embrace the pow- 
er; all nations have used it : the exercise of it was one of the very grounds 
on which the establishment of the Constitution was urged and vindicated. 
The argument, then, in its favor, would seem to be absolutely irresistible in 
this aspect." 

In 1 Cranch, 299, the Supreme Court, in reply to objections, say : 

"Practice and acquiescence for a period of years, commencing with the 
organization of the Judiciary, afford an irresistible answer and fix the con- 
struction. It is a contemporary interpretation of the most forcible nature. 
This practical exposition is too strong and obstinate to be shaken or con- 
trolled." 

With such maxims universally acknowledged, it is evident that 
the understanding of the nation at the time, uniform practice since, 
and uninterrupted acquiescence by all parties, form one of the most 
obvious methods of determining with irresistible clearness the mean- 
ing of the Constitution, and one which all courts admit and respect. 
Indeed the constant and undisputed practice of the people may be 
considered a declaratory act passed by the law-making power itself, 
(the people,) determining what their own meaning and intention 



32 * REVIEW. 

was and is; and declaratory acts, says Coke, cannot be further ex- 
plained or interpreted. 3 Reports, 31, a, Mr. Spooner, speaking 
of the Constitution, ridicules as "preposterous," 

" The pretence that the majority of the people of all the States either in- 
tended to establish, or could have been induced to establish, any other than a 
free one for the nation : or that they believed or understood that they were 
establishing any but a free one." — p. 126. 

We confess this last statement made us pause. To argue that 
Slavery was not tolerated by the Constitution has been aptly con- 
sidered by Edmund Q,uincy as " arguing the nose off of one's face," 
an illustration which the sentiment of Gouverneur Morris, taken for 
our motto, sanctions and might almost suggest. But it needs a much 
bolder man to maintain that the American people did not believe 
that Slavery was alluded to in the so-called pro-slavery clauses! 
We hardly know of a more daring flight of genius in the whole 
range of modern fiction than this. Archbishop Whately once 
framed an argument, in jest, to prove that Napoleon never existed. 
The attempt of Mr. Spooner here seems a counterpart to that, but 
then he is in earnest. Mr. Spooner tells us that : 

" To suppose that the nation at large did not look upon the Constitution 
as destined to destroy Slavery, whenever its principles should be carried 
into full effect, is obviously to suppose an intellectual impossibility: for the 
instrument was plain, and the people had common sense; and those two 
facts cannot stand together consistently witli the idea that there was any 
general, or even any considerable, misunderstanding of its meaning." 
—p. 126. 

If, then, there could be no general misunderstanding of the 
meaning, what was the understanding? If we can get that, we 
shall, according to Mr. Spooner, have the right understanding of 
the instrument. 

Throughout his book Mr. Spooner expends a great deal of very 
excellent indignation upon those who refer to the Madison Papers, 
and the Convention which met at Philadelphia, in 1787, to ascer- 
tain the meaning of the people. He tells us very truly that those 
men were employed merely to draft the Constitution. Their office 
was that of clerks. Still, their opinions are of value. But he 
mistakes the point. The Conventions referred to are those which 
met in the several States, and, in the name of the people, adopted 
the Instrument. Theirs were the hands which ratified, and theirs 
the voices which, meanwhile, explained the se7ise in which they rat- 



INTENTIONS OF THE PEOPLE. 33 

ified and adopted the paper. Their opinions, therefore, are fair 
and legitimate evidence of the sense in which the Constitution was 
accepted. Very good evidence exists of the views they took on all 
the main points ; and when they were all agreed, as they were on 
the Slave clauses, it is idle to say of a contract, like the Constitu- 
tion, that the views of those that made it are to be thrown entirely 
out of notice. 

But we can throw all these debates and the Federalist also aside, 
and yet furnish Mr. Spooner with abundant, aye, and legal, evi- 
dence what was the meaning attached to the chief pro-slavery 
clause in the Constitution by the people themselves : we mean that 
relating to the three-fifth slave basis; and whether he thinks it an 
" intellectual impossibility," or not, he will find that the meaning 
thus affixed to it was the same it has borne ever since, and every- 
where, except in his pages. 

This clause the reader will hereafter see, Mr, Spooner maintains 
has no relation or reference to the slaves. 

Now, in 1789, the Constitution was launched. In 1790, the 
census was taken. In 1792, elections were held throughout the 
Union, for members of Congress. 

If there was no understanding that the slaves were to be counted 
in a distinct manner, why were they kept carefully separate in that 
census ? Why, in 1792, were the State numbers settled on the 
basis of reckoning only three-fifths of the slaves 1 The North he 
represents as ready to spurn any allusion to Slavery, and the South 
surely would not willingly be shorn of her strength, unless it were 
so " nominated in the bond." If neither party wished it, how was 
such an interpretation foisted upon the text ? Again, why did each 
voter go to the polls and elect his candidate on that basis ? Every 
one is presumed to know the law; and hence, while history tells us 
that every intelligent man did actually know how the Representa- 
tives were apportioned, the law presumes and holds every voter 
bound to know the same fact also, whether he did or not. In so 
far, then, as this clause is concerned, we have brought home to 
Congress, and to every voter in 1792, — only four years after the 
Constitution was adopted, — full and unequivocal knowledge that 
they understood it, as we ourselves and the nation do now. Let, 
then, Mr. Spooner explain this intellectual impossibility, " for the 
Instrument was plain, and the people had common sense, and those 



34 



REVIEW. 



two facts cannot stand together consistently with the idea that there 
was any general, or even any considerable, misunderstanding of its 
meaning ! " 

If human ingenuity had been tasked to imagine a practicable 
method of proving, after the lapse of half a century, how any public 
document had been understood by the nation at large, it could not 
have devised one more complete and perfect than this. 

The same may be said of the fugitive slave clause. We know 
that from 1791, downward, cases were frequently occurring under 
it, in various parts of the country ; yet no one ever denied, till 
now, that the clause was meant to apply to such cases. Even the 
stout old Vermont Judge, who asked, in 1807, for a bill of sale 
from God Almighty, before he would consider the proof " suffi- 
cient," could not deny the meaning of the bond. Here, again, is 
one of those "intellectual impossibilities," of which Mr. Spooner's 
view is fruitful. 

The reader will excuse us for detaining him by an attempt to 
show that the pro-slavery clauses, above quoted, were understood 
as pro-slavery by the people. It is as much waste of time as to 
heap up proof that the sun shines, or that water will run down hill. 

We very readily agree that there was a prevailing opinion, — 
which time has shown to have been a mistaken one, — that the 
abolition of the Slave-trade would ultimately Yini an end to Slavery. 
There is no evidence of any general expectation that the Constitu- 
tion would have any influence othertvise in producing such a result. 
Such being the general idea, how far, in the mean time, they 
thought it right to tolerate it, is quite another question. Pennsyl- 
vania, in her noble statute of 1780, proposed and achieved an 
M/<m«/e emancipation ; but she guaranteed to the master, mean- 
while, the right of property in the slaves he then had. Gradualism 
was the creed of that day. No one dreamed of meddling with the 
master's hold over the slaves then living. If we place ourselves in 
their position, there is nothing that need surprise us in the thirteen 
Slates, (twelve of which still held slaves,) agreeing to base their 
representative system on Slavery, to aid each other against a slave 
insurrection, and to return fugitives. They expected, — perhaps they 
wished, still, that Slavery should cease, but thought these measures 
not wrong in the meantime, and no hindrance to its ceasing. 
Time has shown they were mistaken. But that mistake docs not 



RULES OF INTERPRETATION. 35 

free their children from the agreements made under it, foolish and 
wicked as time has shown them to be, and none the less so because 
the makers may have thought them harmless and right. Fire will 
consume, spite of foolish men's thinking that they may handle hot 
coals and not be burnt. The only way their sons can free them- 
selves, is to disown their fathers' act, the Constitution itself. The 
only path to such release is over the Constitution, trampling it 
under foot; not under it, trying to evade its fair meaning. 

The reader will observe that we have all along looked at the 
Constitution in the light of a statute, or simple contract, and 
applied the techinal rules usual in such cases. This has been done 
because we are willing to meet Mr. Spooner on his own ground, 
and think that even there, his argument has no solid footing. But 
in strict truth, the Constitution ought not so to be viewed. Its 
character is peculiar. It is not so much a statute as a great 
national event, and is to be interpreted not by technical rules, but 
by liberal reference to the history of the times, the circumstances 
which produced it, the great parties and interests represented in it, 
and the national objects it has in view. It was meant for the hands 
of the statesman, not for ihe quibbling distinctions of the mere 
lawyer. As such it has always been approached. Ifhereweomit 
this view, it is not because we do not sincerely entertain it, but 
solely in order to follow our author, and, taking his own principles 
for granted, to show him that the result is just as much in our favor 
as it would be on every other possible basis. 



THE CONSTITUTION ITSELF. 

RULES OF INTERPRETATION. 

We pass to the next point of Mr. Spooner's argument, that the 
Constitution of the United States, legally interpreted, does not 
recognize or sanction Slavery. He considers himself to have 
proved : 

" That the Constitution of the United States not only does not recognize 
or sanction Slavery, as a legal institution, but that, on the contrary, it pre- 
sumes all men to be free ; that it positively denies the right of property in 
man ; and that it, of itself, makes it impossible for Slavery to have a legal 
existence in any of the United States." — pp. 56, 57. 



36 EEVIEW. 

What, then, are the legal rules by which the Constitution is to 
be interpreted ? The following are those selected by Mr. Spooner, 
and upon these he bases his argument : 

1st, The language of C. J. Marshall, in Ogden vs. Saunders; 
(12 Wheaton, 332;) where he said that, in construing the Consti- 
tution : 

" The intention of the Instrument must prevail ; that this intention must 
be collected from its words; that its words are to be understood in that sense 
in which they are generally used by those for whom the Instrument was 
intended ; that its provisions are neither to be restricted into insignificance, 
nor extended to objects not comprehended in them, nor contemplated by its 
framers." 

2d. The rule laid down by the Supreme Court in 2 Cranch, 390. 
Here Mr. Spooner has, rightly enough, quoted but a single sen- 
tence. We prefer, however, to give the entire paragraph, that the 
reader may have before him the ichole doctrine, as the Court laid 
it down. The sentence quoted and jelied upon by Mr. Spooner is 
the second, which, for distinction, we have included in brackets : 

" That the consequences are to be considered in expounding laws, where 
the intent is doubtful, is a principle not to be controverted ; but it is also 
true that it is a principle which must be applied with caution, and which 
has a degree of influence dependent on the nature of the case to which it is 
applied. [Where rights are infringed, where fundamental principles are 
overthrown, where the general system of the laws * is departed from, the 
legislative intention must be expressed with irresistible clearness, to induce 
a Court of justice to suppose a design to eff"ect such objects.] But where 
only a political regulation is made, which is inconvenient, if the intention 
of the Legislature be expressed in terms which are sufficiently intelligible 
to leave no doubt in the mind when the words are taken in their ordinary 
sense, it would be going a great way to say, that a constrained interpretation 
must be put on them to avoid an inconvenience which ought to have been 
contemplated in the Legislature when the act was passed, and which, in 
their opinion, was probably overbalanced by the particular advantages it 
was calculated to produce." 

This latter rule is explained by Mr. Spooner to amount to this : 
-(P-62.) 

* Mr. Spooner has, inadvertently, printed this "the general system of 
the law." The language used by the Court is, "the general system of the 
laws;" which conveys a slightly different meaning. The first might refer 
to the general system of law, as a science; the last form, that used by the 
Court, clearly relates to the general spirit of the latcs of this nation, which 
is quite a different thing. 



RULES OF REPRESENTATION. 37 

*' That where words are susceptible of two meanings, one consistent, and 
the other inconsistent, with justice and natural right, that meaning, and 
only that meaning, which is consistent with riglit, shall be attributed to 
them — unless other parts of the Instrument overrule that interpretation." 

And that, in order to sanction anything contrary to natural right, 
the terms must be " plenary, express, distinct, unequivocal," (p. 59,) 
and must need no " extraneous or historical evidence to fix upon 
them their immoral meaning," (p. G2.) 

We shall defer our criticism on this explanation to a future time, 
and granting Mr. Spooner, for the present, all he asks, proceed to 
consider the argument he has erected upon this basis. We will 
first, however, remind the reader of two other rules, which Mr, 
Spooner will not dispute, so universally recognized as not to need 
proof, but which will be found in the places named. 

1st. " Every word in the Constitution is to be expounded in its plain, 
obvious, and common sense, unless the context furnishes some ground to con- 
trol, qualify, or enlarge it. If a word has a technical and a common sense, 
the latter is to be preferred, unless some attendant circumstance points 
clearly to the former." 

Story's Comm., 1. 436, 438. C. J. Marshall, 9 Wheaton, 188. 
12 Wheaton, 332. 1 Brock, 423. Dwarris, 702. Kent's Comm., 
1. 462. Chitly on Contracts, 81. Blackstone, 1. 60. Federalist, 
83. 

In 4 Wheaton, 202, Chief Justice Marshall, speaking of a 
"departure from the obvious meaning of words," says — and the 
remark may be considered as an explanation by the court 
ITSELF, of the rule as to irresistible clearness, above cited by Mr. 
Spooner : — 

" If in any case the plain meaning of a provision, not contradicted by any 
other provision in the same Instrument, is to be disregarded, because we 
believe the framers of that Instrument could not intend what they say, it 
must be one in which the absurdity and injustice of applying the provision 
to the case would be so monstrous that all mankind would, without hesita- 
tion, unite in rejecting the application." 

2d. Every word must be made to have some meaning. — Chitty 
on Contracts, — Blackstone, 2. 380, — Bacon's Abridgment, Stat- 
ute, — 1 Cranch, 174, — 12 Wheaton, 147. 
4 



38 REVIEW. 



THREE-FIFTHS REPRESENTATION — SLAVE BASIS. 

In the light of these rules let us open the Constitution. The 
first clause we meet is as follows : (Art. 1, Sec. 2.) 

" Representatives and direct taxes shall he apportioned among the several 
States ichich may be included within this Union, according to their respective 
numbers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and excluding 
Indians not taxed, three-fifths of all other -persons. The actual enumeration 
shall be made icithin three years after the first meeting of the Congress of the 
United States, and within every subsequent term of ten years, in such manner 
as they shall by law direct. The number of Representatives shall not exceed 
one for every thirty thousand ; but each State shall have at least one Represen- 
tative : and until such enumeration shall be made, the State of Kew Hampshire 
shall be entitled to choose three, Massachusetts eight, Rhode Island and Provi- 
dence Plantations one, Connecticut five, New York six, JVew Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, JVorth Caro- 
lina five, South Carolina five, and Georgia- three." 

Upon this Mr. Spooner remarks : 

♦'The argument claimed from this clause, in support of Slavery, rests 
entirely upon the word ' free,' and the words ' all other persons.' Or rather, 
it rests entirely upon the meaning of the word ' free,' for the application of 
the words 'all other persons' depends upon the meaning given to tlie word 
'free.' The slave argument assumes, gratuitously, that tlie word ' free ' is 
used as the correlative of Slavery, and thence it infers that the words, 'all 
other persons,' mean slaves." — p. 73. 

He then proceeds to argue that the clause has no relation or re- 
ference to slaves; that to suppose it to have, subjects us to all sorts 
of " difficulties, inconsistencies, contradictions, and absurdities," 
but he assures us that these will all vanish if, with him, we hold 
that : 

" The word 'free' describes the native and naturalized citizens of the 
United States, and the words ' all otiier persons ' describe resident aliens, 
'Indians not taxed,' and possibly some others." — p. 78. 

Mr. Spooner nowhere denies that the "plain, obvious and com- 
mon " use of the word " free " is to designate one not a slave : and 
he allows that if it be so interpreted here, the Constitution must be 
confessed to recognize Slavery. But he informs us that the word 
has also a technical legal meaning, designating a person in any 



THREE-FIFTHS REPRESENTATION SLAVE BASIS. 39 

community, who is invested with peculiar privileges, &/C., and so 
might describe a citizen as distinguished from an alien. This is 
true. He asks us to pass by the plain, obvious, and common mean- 
ing, and adopt this technical one, in accordance with his rule above 
quoted, that where words are capable of two meanings, the one 
consistent with justice, is to be preferred to that which is not so. 
Now, here the Court is in a dilemma. We bow to his rule; we 
are anxious to construe this clause so as to defeat injustice and sus- 
tain the right. But while, on the one side, he tells us that by 
adopting the obvious meaning of the word " free," we shall recog- 
nize Slavery, — Mr. Gerrit Smith and other tender consciences, 
intreat us to hold that this word "free" does exclude slaves, and 
that hence the clause allows only three-fifths of such to be repre- 
sented; assuring us that this arrangement is " a bounty on liberty, 
and an attempt to promote the Anti-Slavery cause." — (Smith, to 
Whittier.) 

Besides, we know that the clause, in our sense, was reluctantly 
submitted to by the South, as an unfair abridgement of their rights, 
and exulted in at the North, as a just rebuke of a bad system. This, 
therefore, cannot be a case " so monstrous " that, in the language 
of Marshall, " all mankind would, without hesitation, unite in re- 
jecting the application." It rather resembles one of those "politi- 
cal inconveniences," referred to in the citation from Cranch, with 
whose results Courts have nothing to do. 

Again, Mr. Spooner and his friends, object to our construction 
as working injustice, because the master now votes (practically) for 
three-fifths of his slaves. Suppose the Court adopts his interpreta- 
tion. The master will then get all his slaves counted instead of 
three-fifths of them ! The Court cannot see how that result will 
much aid the cause of justice. We cannot oblige Carolina to allow 
her slaves to vote, no, not even if they should be emancipated. If 
the Constitution considers the slaves property, then it recognizes 
Slavery. If, as Mr. Spooner asserts, it does not recognize Slavery, 
then it must, as he all along allows, consider the slave a person. 
The slaves being persons, they must be included either among " free 
persons," or among " three fifths of all other persons." The last is 
the old pro-slavery construction. If, on the other hand, Mr. Spoon- 
er, or any one else, shall so construe " free persons," as to include 
the slaves, the only result of this new interpretation will be to in- 



40 



crease the political weight of the slaveholders by just two-fifths of 
their slaves ! The Court thinks it better, in this view, to adhere to 
the obvious meaning of the clause. It acknowledges that the clause 
is bad, as now interpreted, but the proposed change only makes it 
" TWO-FIFTHS " worse. The Court will cheerfully go out of its 
track and adopt a strained construction to subserve justice, but 
never will do so, when the only result of such " departure from the 
plain and obvious meaning" is, to strengthen the hand of the tyrant. 
Mr. Spooner's rule, therefore of preferring the righteous to the un- 
righteous meaning of ambiguous words, does not apply here. Un- 
happily no choice is left us, and we must adhere to the obvious 
meaning, which leaves the Constitution pro-slavery.* 

But though Mr. Spooner does not deny that this use of the word 
"free" is the plain, obvious, and common one, he yet maintains 
that the word had, at the time of the adoption of the Constitution, 
obtained a fixed and well-known usage, in the law, in his sense. 
He says : 

"Up to the time of our revolution, the onZy meaning which the words 
♦free' and 'freemen' had, in the English law, in the charters granted to 
the colonies, and in the important documents of a political character, when 
used to designate one person as distinguished from another, was to designate 
a person enjoying some franchise or privilege, as distinguished from aliens 
or persons not enjoying a similar franchise. They were never used to de- 
signate a free person as distinguished from a slave — for the very sufficient 
reason that all these fundamental laws presumed that there were no slaves." 

— ;>. 48. 

"But throughout the English law, and among all the variety of ways, in 
which the word 'free' and 'freemen' are used, as legal terms, they are 
never used as the correlatives or opposites of slaves or Slavery — and for the 
reason that they have in Enghind no such persons or institutions, known to 
their laws, as slaves or Slavery." — p. 46. 

" The English law had for centuries used the word ' free ' as describing 
persons possessing citizenship, or some other franchise or peculiar privilege 

— as distinguished from aliens, and persons not possessed of such franchise 



*The only possible reply to this argument is that the Supreme Court will 
first /rcc the slaves, and then this bad result will not follow from the new 
inter[)retation. Of course if the slaves are freed, Mr. Spooner may construe 
the Conslitution as he pleases. Tliat Judges have no power to emancipate 
under the g-^neral principles of law, we think we have already proved; — 
that tin; Constitution gives them no such power, we shall show liirther on. 
Unless they have it, in one way or another, the above argument seems irre- 
sistible. 



THREE-FIFTHS REPRESENTATION SLAVE BASIS. 41 

or privilege. This law, and this use of the word 'free,' as has already been 
shown, (Ch. 6.) had been adopted in this country from its first settlement. 
The colonial charters all (probably without an exception) recognized it. 
The colonial legislation generally, if not universally, recognized it. The 
State Constitutions, in existence at the time the Constitution of the United 
States was formed and adopted, used the word in this sense, and no other." 
— p. 74. 

The above italics are Mr. Spooner's. 

We might allow this, and still remind Mr. Spooner that all jurists 
and statesmen have held the Constitution to be a popular instru- 
ment, — intended for the people at large, and hence that all words 
are to be taken in their obvious and general sense, unless something 
in the context requires a technical one : and such is this which he 
suggests. 

But the statements above quoted are entirely unfounded in fact. 
"The words free and freeman never used in English law to desig- 
nate a free person as distinguished from a slave!" Open Jacobs' 
Law Dictionary, a book of good authority, and choose the edition 
of 1772, which the makers of the Constitution might hare used, 
and we read, "Freeman, — liber homo, is one distinguished from a 
slave, that is born or made free." This is the frst clause of the 
definition. In his citation from Jacobs, Mr. Spooner has omitted 
it, and quoted only what follows ; see his 45th page. 

Unroll the parchment of Magna Charta; its most famous clause 
begins, " Nullus liber homo," (no free man,) which Coke tells us 
(2 Inst. 45.) " extends to villeins saving against their lords, for they 
axejree against all men, saving against their lord." 

Villeins, Coke tells us, were servi, (slaves,) and he deduces their 
origin from Ham, as men do our present Slavery. This is the sys- 
tem of Slavery which the Common Law allowed and recognized, 
though Messrs. Spooner and Goodell will have it that the Common 
Law never allowed Slavery. The words "free and freeman" in 
the sense of not a slave, occur frequently, both in Littleton and 
Coke. We take a few instances : 

"No tenure shall ever make a freeman villeine." — Coke Litt. s. 172. 

"If a freeman take lands to hold by villein service, this maketh not the 
freeman a villeine." — 76. s. 174. 

" If a freeman hath divers issues (children) and afterwards confesseth him- 
self to be a villeine in a court of record, yet those issues, which he hath be- 
fore the confession are/ree; the issues after shall be villeines." — lb. s. 176. 

4* 



42 REVIEW. 

In the year 1514, Henry the VIII. manumitted two of his villeins 
in the following deed, the first words of which are wonderfully like 
those of our Declaration and our State Constitutions : 

"Whereas God created all men free, but afterwards the laws and customs 
of nations subjected some under the yoke of servitude, we think it pious and 
meritorious with God to manumit," «&c., &c. — Barrington's Stat. 2d ed. 
249. 

Again ; Blackstone tells us (2. 104,) that the old definition, by 
Britton, of a freehold estate in land, as distinguished from other 
tenures, was, " the possession of the soil by a freeman." Now as 
aliens cannot hold land in England, this definition is nonsense, if 
we interpret the word " freeman " in Mr. Spooner's sense, one not 
an alien. But interpreted as the writer and Blackstone meant it to 
siomify, one not a villein or slave, it rightly distinguishes this kind 
of estate from copyhold and base tenures. 

We might adduce other instances ; but here are enough to test 
Mr. Spooner's assertion that these words are never used in the En- 
glish law as opposed to slave and SI very. 

Let us come to our own side of the ocean. " Every public doc- 
ument previous to the Revolution, and every State Constitution in 
America at the time of the adoption of the United States Consti- 
tution, used these words in his sense and no other," says Mr. 
Spooner. Let us see. The United States Constitution was 
adopted in 1787. 

The Declaration of Independence, 1776, says, "A prince, whose 
character is thus marked by every act which may define a tyrant, 
is unfit to be the ruler of a free people." 

In March, 1776, South Carolina adopted her first Constitution, 
and declared that the " claims of Parliament would reduce them 
from the rank of freemen to the most abject slavery;" and that 
"Governors, &-c., have proclaimed freedom to servants and slaves, 
and armed them against their masters." 

In 1776, Virginia adopted her Constitution, declaring "that all 
men are by nature equall .free and indepen ent." 

Constitution of Pennsylvania, 1776: "All men are born equally 
free and independent." 

Constitution of Massachusetts, 1780: "All men are born free 
and equal." These words are held to have abolished Slavery 



THREE-FIFTHS REPRESENTATION SLAVE BASIS. 43 

in the Commonwealth, and, Dr. Belknap says, were inserted for that 
special purpose. 

Constitution of New Hampshire, 1783: "All men are born 
equally yVce and independent;" words which, Dr. Belknap tells us, 
freed all slaves born there after that date. — Mass. Hist. Coll., 
4. 204. 

The great Anti-Slavery Statute of Pennsylvania, in 1780, has 
this clause : " No man or woman, except the negroes and mulattoes 
registered as aforesaid, shall be held as slaves or servants for life, 
but as free men and free ivomcn." 

In 1784, Connecticut enacted that no negro or mulatto child 
born in the State after 1st of March, 1784, should be held in 
servitude longer than till the age of twenty-five years, " but such 
child, at the age aforesaid, shall he free." 

To fix the meaning of a word in the Constitution of thirteen 
United States, it is fair to consult the laws of all. As, in inter- 
preting a treaty, it is usual to explain the meaning of the terms 
used, by reference to the laws of both the contracting nations. 
(See the Amistad Case.) But if we open the Statute Books of any 
of the States, we shall find the words " free and freemen " used 
almost every year in contradistinction from slaves; and, of course, 
more frequently, the further South we go in our search. Indeed, 
it is ludicrous to say of the legislation of thirteen States, all of 
which had held slaves till withiti seven years, and ttvclvc of xohich 
still held them, in 1787, that they did not use the word "free" 
to dist'nguish those persons not slaves. They could not have 
framed their Statutes, without the use of such a word. 

It matters not whether we consider these Slave Laws valid or 
void ; they are, at least, in either case, good evidence of the com- 
mon meaning, at that time, of the words used in them. 

With these facts, we leave the reader to rate, at its true value, 
this assertion of Mr. Spooner's, as to the use of the word " free," 
in the public documents and Constitutions of these States, in his 
sense and no other. 

But let us look again at the clause itself, and see, from the con- 
text, whether we can, without making nonsense of the whole, allow 
the word " free" to have any meaning but the one usually o-iven it, 
t. e., not enslaved. For it is a rule alike of law and common 
sense, that law-makers must be supposed to mean something, and 



44 



REVIEW. 



that any construction which makes words superfluous or insignifi- 
cant, or the whole clause foolish, is not to be admitted. And Mr. 
Spooner himself allows, (p. 62,) as above quoted, that the wicked 
meaning must be adopted, if the "other parts of the instrument" 
(the context) require it. 

1st. " By adding to the whole number of free persons, including thoee 
bound to service for a term of years, and excluding Indians not taxed, three- 
fifths of all other persons." 

So says the Constitution. If " free persons " is taken to mean 
persons at liberty — persons not bound to servitude, we see at once 
the propriety of the law-makers giving an express direction to 
include, among such, those " bound to service for a term of years" 
only, if they wished so to distinguish their case. Had this been 
omitted, some might have argued, that, strictly speaking, such were 
not free persons. Hence the necessity of this special direction. 
But on Mr. Spooner's interpretation of " free persons," meaning 
all native born citizens, where is the necessity of giving any such 
direction? Nobody ever dreamt that being bound apprentice 
destroyed a man's citizenship ! They would naturally have been 
included among his free persons, without any special direction. 
The careful insertion of this parenthesis proves that Mr. Spooner's 
notion was not in the mind of the writer. 

2d. Again ; " excluding Indians not taxed." Chief Justice 
Marshall says (12 Wheaton, 438,) that : 

" It is a rule of interpretation, to which all assent, that the exception of a 
particular thing from general words proves that, in the opinion of the law- 
giver, the thing excepted would be within the general clause, had the 
exception not been made," and that this is " applicable to the Constitution." 

Apply this rule, and it proves our construction correct, and Mr. 
Spooner's unsound. With our view of the meaning of " free per- 
sons," Indians being persons, and also /rcc, (not enslaved,) would 
naturally be included, unless, as here, there was special direction 
given to exclude them. But, on Mr. Spooner's hypothesis, why 
insert any caution when there was no danger of mistake? A few 
civilized Indians had joined the whites, and been taxed, and were 
sometimes considered to resemble citizens, though that is still a 
disputed point. But it had never entered the wildest imagination 
to consider the roving, untaxed tribes as native citizens of the 



THREE-FIFTHS REPRESENTATION SLAVE BASIS. 45 

States, any more than now the dwellers on the Rocky Mountains 
would be considered citizens of the United States. This, again, 
shows his view to be incorrect. (See Judge Marshall, in the 
Cherokee Nation v. Georgia, 5 Peters 1, allowing that Indians are 
foreigners, aliens.) 

3d. " Other persons " Mr. Spooner defines to be aliens and 
"Indians not taxed." These last cannot be included, because, 1st. 
The grammatical construction of the sentence forbids it. They 
are to be "other" than free, other than those "bound to service," 
and other than Indians. Qd. According to the well-known rule of 
law which bids us interpret doubtful clauses in any law by referring 
to the same words in other laws, of the same nation, on the same 
subject, (see Kent, 1. 4G3. Lord Mansfield, 1 Burr, 447. Black- 
stone, 1. 60. Dwarris, 699. Bacon's Ab. Statute,) we must con- 
strue this by the old Resolve from which it is copied, passed by 
the Continental Congress, 18th April, 1783, that "expenses should 
be paid by the several States in proportion to the whole number 
of white and other free inhabitants, of every age, sex, and con- 
dition, including those bound to servitude for a term of years, 
and three-fifths of all other persons, not comprehended in the 
foregoing description, except Indians, not paying taxes, in each 
State. (Story's Comm. 2. 112.) 3d. "Why should States agree to 
pay direct taxes for even three-fifths of those from whom they were 
not themselves getting any tax or gain? The same reason, — that 
they were not taxed, — which excluded Indians from the list of 
" free persons," would exclude them, also, from the three-fifth por- 
tion of the basis. If this be so, then, 

4th. Aliens are the only ones left to be included among " other 
persons," on Mr. Spooner's plan. Now there never yet teas a 
State which took any special account of aliens infixing its basis of 
representation. Again, the reason why three-fifths, only, of a cer- 
tain class, was allowed to be reckoned, was evidently because it 
was supposed that class would be unequally distributed through 
the Union, and a portion of it, only, was reckoned to restore the 
balance. If of this class (whichever it was) all the States had 
had equal portions, it would manifestly be indifferent whether all of 
it was counted or none. Now the slaves answer to this description, 
and make the provision a sensible and intelligible one. But aliens 
do not. All the States were on or near the seaboard ; they had 



46 



all enough land to spare, and held out different, but about equal, 
advantages to immigrants. All were anxious to get such, and 
regarded the arrival of foreigners, bringing with them, as they did, 
always labor, and often capital, as a real blessing, — witness the 
debates of that day, — so much of a gain that they would gladly 
have paid, and would have been considered, by their sister States, 
as bound and able to pay, full tax for them, instead of being let off 
with three-fifths. The provision becomes, therefore, on Mr. 
Spooner's hypothesis, absurd ; and hence the interpretation is not 
to be admitted. Or, as the States expected about equal increase 
from this quarter, it would be inoperative and void — which again 
renders the construction legally inadmissible. 

But the consideration that conclusively shows Mr. Spooner's hy- 
pothesis to be untenable is the construction put upon this clause by 
the Constitution itself The latter part of the clause J?a:cs the first 
apportionmmt of representatives. We can examine that scale and 
test the whole matter, seeing which interpretation comports with 
the numbers there set down. 

Referring to that, the reader will find that New Hampshire, Mas- 
sachusetts, Rhode Island, Connecticut, New York, New Jersey, 
and Pennsylvania, then considered as free States, were allowed, 
hy the Constitution itself, thirty-five Representatives. Delaware, 
Maryland, Virginia, North and South Carolina, and Georgia, the 
slave States, were allowed thirty Representatives. Now we have 
no exact census to refer to ; thei*e was none. The data probably 
used to estimate these numbers were the same with those by which 
the old Congress apportioned taxes under the Resolve above cited. 
(See Journal of Congress, Sept. 27, 1785, and elsewhere.) As the 
above numbers conform generally to the ratio there used, which 
was confessedly calculated on the basis of reckoning three-fifths of 
the slaves, it proves that the same rule was folloivcd here, and so 
settle the question. 

If Mr. Spooner dislikes this method of proof we can give him a 
different one. Let us refer to the nearest official census, that of 
1790, taken only three years after. The above named free States 
had then 1,968,455 inh il itants. The slave States had 1,303,845 
free inhabitants, and 657,527 slaves. If the reader will go over the 
calculation he will find that on the basis of reckoning three-fifths of 
the slaves, the number of Representatives (35 and 30) given to each 



THREE-FIFTHS REPRESENTATION SLAVE BASIS. 47 

grand division is as exact as could possiblj/ be. On Mr. Spooner's 
plan, being equal in absolute numbers (1,968,455, to 1,961,372) they 
should have been equal also in the number of their Representatives. 

Again; take separate States, where to be sure there would be 
more chance of error than in a general survey. Still, making due 
allowance for such mistakes, unavoidable before any general census 
had ever been made, we find evidence of the same rule being ob- 
served. Select the old and best known States, about which there 
would be least probability of error. Take first two free States. 
Compare Pennsylvania — 434,000 inhabitants — with Massachu- 
setts, — then including Maine, 475,000. About equal in popula- 
tion, they have, as we should anticipate, an equal number of Repre- 
sentatives, eight, assigned to each. Compare Virginia, — then 
including Kentucky, 821,000 — with North Carolina, — then in- 
cluding Tennessee, 429,000 — the first nearly double the last, and 
their Representatives preserving the same ratio, 10 to 5. Now 
compare a free and a slave State; Pennsylvania, (434,000,) with 
North Carolina, (429,000,) about equal in population, the first is 
allowed eight, and the last only^ye Representatives. How is this 
to be explained on the " alien " hypothesis ? Again, compare Penn- 
sylvania, (434,000,) with Virginia, (821,000) ; the last nearly double 
of the first, but not as was the case in comparing her with North 
Carolina, allowed double the number of Representatives; no, she 
has only ten to Pennsylvania's eight. How is this to be explained 
on the alien hypothesis? 

If we allow Mr. Spooner to include three-fifths of the Indians 
amonor "other persons," their numbers are not sufficient to explain 
this difficulty. Their whole number in all the thirteen States was 
supposed to be only 30,000. (See Jefferson's Notes. Holmes's An- 
nals. North American Review.) 

And at the time this first apportionment was made there were, ac- 
cording to Mr. Spooner's own admission, (pp. 56, 100, »Si-c.) abso- 
lutely nw alie7is at all to be counted in any way ; as he says the 
Constitution made citizens of all persons then residing in the coun- 
try. This makes these differences of numbers still more inexpli- 
cable on his plan. 

But now glance along the census and observe how many of the 
swelling numbers of the Old Dominion are marked " slaves," and 
then reckon only three-fifths of those — and the whole riddle is 
solved. So too of North Carolina. 



48 REVIEW. 

We have made the above calculations on the official census of 
1790, But if we recur to the estimates which might have been, 
and probably were, in the hands of the Convention, the result is the 
same. For instance — Massachusetts, by her private census of 
1784, contained 357,510 inhabitants. Virginia never had a cen- 
sus, but by Jefferson's calculation from accurate data, made in 1782, 
she had at that time 567,614 inhabitants, viz : — 296,852 free, and 
270,762 slaves, (Notes, p. 126, &,c.) Now according to these 
numbers, on Mr. Spooner's plan, if Massachusetts had eight Rep- 
resentatives, Virginia should have had thirteen. On our plan she 
should have had, as she did, just ten. 

Mr. Spooner's hypothesis, then, if admitted, proves that the Con- 
stitution did not understand itself! He does not deny that the 
words are capable of bearing the common pro-slavery construction ; 
they are then "plenary," as he demands, words should be to make 
a wicked law valid. Taking the above considerations into view, 
they are seen to be " express, explicit, distinct and unequivocal," 
and any Court must hold the meaning, wicked as it is, to be ex- 
pressed with " irresistible clearness." 

Thus granting Mr. Spooner all the principles of construction, he 
asks, and allowing also that the word " free" is susceptible of two 
meanings, we have still shown — 

1st. That to adopt the most unusual meaning does not get rid of 
the injustice of the old interpretation, but only increases it, — con- 
sequently his rule of preferring a righteous to an unrighteous mean- 
ing does not apply here. 

2d. That the context will not allow any meaning but the usual 
one to be given to this word without making nonsense of the whole 
clause. Even then if his rule does apply, we have brought the case 
within the exception stated by Mr. Spooner in the sentence above 
quoted from his 62d page; that the righteous meaning must be 
given up and the unrighteous one adopted, however reluctantly, 
when "the other parts of the Instrument require it." 

In addition to the argument on the word " free," Mr. Spooner 
makes but three points. 

1st. That there was no Slavery in the States to which our mean- 
ing can apply. This falls under our third division and will be fully 
considered then. 



THREE-FIFTHS REPRESENTATION SLAVE BASIS. 49 

2d. He says : " It is very evident that the word ' free ' is not used 
as the correlative of Slavery, because ' Indians not taxed ' are 'exclu- 
ded ' from it application, yet they are not, therefore, slaves." — p. 74. 

This is a strange mistake on his part. The inference here is 
precisely the other way. Indians are specially " excluded," because 
they are " free," and not slaves, and would natwrally have been 
reckoned with free persons; hence the necessity, as it was not de- 
signed to include them, to insert a precise direction, 

3d. The difficulty of ascertaining who are free and who slaves. 
He says the Government, on our plan, have no legal information, 
and are obliged to depend on varying State laws. Very true ; this 
is often the case in other matters, and furnishes no objection to our 
interpretation. In this very section of the Constitution, the electors 
of Representatives in each State, are to be those who are ''electors 
of the most numerous branch of the State Legislature." Congress, 
therefore, in ascertaining whether its own members are chosen, has 
to depend on the laws of the States, which may be, and are, differ- 
ent in different States, and may be changed every year. Beside, it 
is as easy to find legal evidence that a man is or is not a slave, as 
that he is or is not an Indian, an apprentice, or an alien. These 
three things are to be proved even on Mr. Spooner's plan, and he 
must go out of the Constitution to prove them, to family Bibles, to 
private indentures, to actual inspection. Proving slavery is just the 
same, and just as easy. 

But even if any special "inconveniences" would result, they are 
not to be considered by a Court when the language is clear and the 
intention plain. See our quotation above, from 2 Cranch, 390 — 
9 Cr. 203 ; Dwarris, &c., &.c. — 10 Mod. 344; Mr. Justice 
Coleridge, 6 A. & E. 7. 

So far we have taken for granted all the explanations which Mr. 
Spooner has given of these legal rules. Under another head we 
shall offer some criticisms on those explanations. And here we 
would remind the reader, that while Mr. Spooner does not sustain 
his hypothesis unless he shows every clause in the Constitution to be 
pure and Anti-Slavery, — our making out that any sm^/e ohc re- 
cognizes the institution, as fully destroys his argument, as if we 
proved a dozen to be in that predicament. 
5 



50 REVIEW. 



SPOONER'S RULES EXAMINED. 

In our criticism of the Constitution we have proceeded thus far 
on the plan of allowing Mr. Spooner to explain the rules of law in 
his own way, and to extend them as far as he pleases. Let us now 
pause a moment, and see whether any legal decisions or principles 
sustain him to the full extent of the rules he lays down. These 
are, (p. 62,) 

1st. "Where words are susceptible of two meanings, one consistent, and 
the other inconsistent, with justice and natural right, that meaning, and only 
that meaning, which is consistent with right shall be attributed to them — 
unless other parts of the instrument overrule that interpretation. 

2d. " Another rule is, that no extraneous or historical evidence shall be ad- 
mitted to fix upon a statute an unjust or immoral meaning, when the words 
themselves of the act are susceptible of an innocent one." 

The only authority he adduces in support of these is the follow- 
ing sentence from 2 Cranch, 390 : 

" Where rights are infringed, where fundamental principles are overthrown, 
where the general system of the laws is departed from, the legislative inten- 
tion must be expressed with irresistible clearness, to induce a Court of justice 
to suppose a design to effect such objects." 

In the first place it must be remembered that this language is 
used by the Court in reference to common laws; — and it must, 
therefore, be applied with some caution to a case so different as 
that of a National Constitution. The United States Constitution 
is an act of the whole people, undertaking to settle what shall be 
"the fundamental principles" and "the general system of the 
laws " for this Nation. It stands alone, and is to be expounded 
according to its natural meaning; — other laws are to be tested by 
it ; but, springing from the immediate act of the sovereign people, it 
is itself above all such tests. 

Further, we see nothing here which supports the second rule laid 
down by Mr. Spooner. The Court hold that " the intention must be 
expressed with irresistible clearness," but say nothing of the means by 
which they will arrive at such irresistible certainty as to the inten- 
tion of the legislator, whether they shall be exclusively internal or 
not. Elsewhere he cites the language of Marshall, — " The inten- 



spooner's rules examined. 51 

tion is to be collected from the words." — (12 Wheaton, 332.) 
But neither does this support Mr. Spooner's second rule, for it is 
evident from all the other decisions of the Chief Justice, that where 
words are ambiguous, and admit of a construction more or less ex- 
tended, the extent of the power is to be fixed by considering the 
general objects of the Constitution, the practice under it, and the 
historical evidence of the meaning. In all his great decisions he 
constantli/ refers to the history and institutions of the country. He 
does so in the very case from which these words are cited. Also 
at length in 4 Wheaton, 122; 6 Wheaton, 264; 9 Wheaton, 1 ; 
12 Wheaton, 419. In these cases the Chief Justice refers to the 
history of the times, — the state of the country, — the objects of the 
Constitution, as apparent from history, — the purpose for which the 
Judiciary was erected, — the experience of the Confederation, &-c., 
&,c. Our limits do not permit us to give the long extracts which 
illustrate these points. In 9 Wheaton, 1, he says: 

" We know of no rule for construing the extent of such powers, other than 
is given by the languageof the instrument which confers them, taken in con- 
nection with the purposes for which they were conferred." 

Speaking of an ordinary statute, he says, 12 Wheaton, 151 : 

"There is always difficulty in extending the operation of words beyond 
their plain import; but the cardinal rule of construction is, that, where any 
doubt exists, the intent of the legislature, if it can be plainly perceived, ought 
to be pursued." 

Let the reader refer, on this point, to the authorities cited under 
the head, " Intentions of the people ; " especially to that from 3 How- 
ard, 24. In the whole course of the Supreme Court decisions, we 
know of no such rule as this second one of Mr. Spooner's. In the 
whole of Judge Story's chapter on rules of interpretation, (Comm. 
Bk. 111. c. V.) where he has grouped together all the decisions of the 
Supreme Court on this point, there is no allusion to any such prin- 
ciple. On the contrary. Story lays it down that " a power granted 
in general terms, is to be co-extensive with the terms unless some 
clear restriction on it is deducible from the context." " Arguments 
from impolicy or inconvenience ought to have no weight ; they are 
an unsafe guide; men differ, and times differ," &-c., &-c. And 
again ; " The causes which led to the enactment of a law are often 



52 



the best exponents of its words." — Comm. 1. 384, 407, 410. That 
the same rule prevails in England is shown by our previous ex- 
tracts. In 8 Bingh. 181, also, Chief Justice Tindal said : 

"If the words of an instrument be ambiguous, the Court will call in aid 
the acts done under it, as a clue to the intention of the parties." — ^ee 
Dwarris, G96. 1 Kent, 462. 

So far is it from being a rule that extraneous evidence is not ad- 
missible to aid us in getting at the meaning of a statute, that Lord 
Coke in laying down the rules, to which all writers since have as- 
sented, expressly bids us to have recourse to it. He tells us, 3 Rep. 
7, that in order to construe a statute truly, the Judges held four 
things necessary to be understood and considered : 1. What the 
Common Law was before the statute was made. 2. What the mis- 
chief was for which the Common Law had not provided. 3. What 
remedy the Parliament hath resolved and appointed to cure the 
mischief 4. The true reason of the remedy. What is all this but 
a recurrence to the condition and public opinion of the country at 
the time a Law is made? 

Indeed, as we have remarked before, reference to the institutions 
of the country and its history is one of the means the Courts use to 
determine, with irresistible clearness, the meaning of statutes. 

Any other principle would lead to innumerable absurdities. We 
will adduce one or two. 

The Constitution makes every " natural born citizen " eligible 
to the office of President. Now, women are citizens. Are they 
eligible? Here is a case precisely within Mr. Spooner's rules; the 
words are susceptible of a meaning consistent with natural justice; 
in which case he says, " that meaning, and only that meaning, is 
to be adopted." 

Rutherforth (Natural Law, a work of high authority,) admits 
that antecedent to some especial " compact," women have the same 
"natural right" as men, to act, vote, &c., as members of civil so- 
ciety. — p. 288. We know, also, that taxation and representation, 
on American theory, ought to go together — and women are taxed; 
this forms another reason for allowing them a participation in the 
honors and authority of office. Plainly, then, according to Mr. 
Spooner's rules, women are eligible to the Presidency. But it is 
just as plain that this is not law, nor the meaning of the Constitu- 



spooner's rules examined. 53 

tion ; and that the Supreme Court would be justified in referring 
to the history and customs of the country, and of the race and class 
of nations to which we belong, in so construing this clause. 

Mr. Spooner has foreseen this absurd consequence of his rules, 
and unwilling to follow them to their natural result, has endeavored 
to guard against it, by pointing out that the Constitution, in speak- 
ing of the President, always uses the masculine gender. But this 
argument proves too much. It would shut women out of the pro- 
tection of almost all Constitutional provisions. For instance, " no 
person shall be compelled to be a witness against himself, nor be 
deprived of life, liberty or property without due process of law;" 
" the accused shall enjoy the right to be confronted with the witnesses 
against him," " to have counsel for his defence." "A person charged 
with crime, shall be delivered up on demand of the State from which 
HE fled." Here and elsewhere the masculine gender only is used, 
but are women not included 1 It is a principle of law too well 
known for Mr. Spooner to have overlooked it, that in statutes the 
masculine gender includes both sexes. See Coke, 2 Inst. 45. 
Chitty's Contracts. Dvvarris, 713. 

If, instead of legal rules, we refer only to general and popular 
usage, the same is true. " He that believeth and is baptized shall 
be saved, and he that believeth not shall be damned," has always 
been supposed to apply as much to women as to men. 

In a previous notice we pointed this out to Mr. Spooner — and in 
his second edition he tries to avoid this absurd result of his princi- 
ples, by pretending that where an office filled by a single individual 
is spoken of, the masculine gender would not include women. But 
this ingenious evasion cannot avail him. In English statutes and 
maxims it is quite general to use only the masculine gender, — " the 
King," " his Majesty," — and yet such laws and maxims would be 
equally binding and valid under a dueen. Still this is an office 
filled by a single individual. 

But further, the office of President is not the only part of the 
Constitution to which our argument will apply. It relates just as 
well to Senators and Representatives, — which are not cases of 
offices filled by single individuals. 

In this case, therefore, if we construe the Constitution according 
to Mr. Spooner's rules, women are constitutionally eligible to the 
Presidency and to Congress; nothing but "extraneous and his- 
5* 



54 REVIEW. 

torical evidence" shields us from this result. As Mr. Spnoner 
does not allow of this when it will fix upon a clause any meaning 
contrary to " natural right," he is bound to hold that women may 
now legalhj fill these offices, or to give up his rules, and more 
especially, his second one. 

So Congress has the power to " define and punish piracy." 

Suppose the Anti-Capital Punishment party should increase, and 
insist that " to punish" may mean to imprison — does not neces- 
sarily refer to capital punishment — that this last is " inconsistent 
with natural right;" — hence, "as an innocent meaning, and no 
other, must, if possible, be affixed to the Constitution," the Supreme 
Court are bound to decide that the Constitution does not give Con- 
gress power to punish pirates with death. This would be legitimate 
on Mr. Spooner's rule, but would it not be absurd ? Ought not 
that Court to inquire what were the ideas and laws of 1789 on the 
subject, and if, " on this extraneous and historical evidence," they 
found that capital punishment was not then deemed wrong, ought 
they not to consider this " as irresistible clearness of expression," 
and to hold the construction innocent and admissible? The 
same may be said of Slavery. 

The Constitution says, " the writ of Habeas Corpus shall not be 
suspended." Recurring to common law, we find what this techni- 
cal term means. But which writ oi Habeas Corpus is referred to? 
There happen to be five or six of them. It is only " extraneous 
and historical evidence" that tells us how vital to liberty one of 
these writs is considered, and hence enables us to decide that this 
is the one meant. 

Again; "where words are susceptible of two meanings, one 
consistent and the other inconsistent with justice and natural 
right," Sfc. 

Mr. Spooner may say, "True historical evidence is admitted in 
common cases, hut not where the question is between a righteous 
and an unrighteous meaning." We reply, the idea of such a dis- 
tinction, as far as our Constitution is concerned, is denied by 
Story, see 1. 410 and 1 Wheaton, 347. But suppose the case were 
so, then the question arises, who is to decide whether a construction 
is or is not consistent with natural right? By what test are Courts 
to determine what is right and what is wrong? Mr. Spooner leaves 
it to be supposed that wherever a thing is generally considered 



spooner's rules examined. 55 

wrong, there the Court will act on this principle. The use of an am- 
biguous word is here again the source of his mistake. It is true, as 
he says, that Courts will always give " an innocent meaning to 
words where they will bear it," but the test by which they try the 
guilt and innocence of a meaning is not general opinion or their 
own conscientious convictions; but by comparing it with the gen- 
eral system and spirit of the laio. They will always " strain hard," 
as they phrase it, to give a legally innocent meaning to words, — 
nothing more. But in doing so, they never will go counter to the 
general system and spirit of national law. We will offer some 
authorities on this point, referring, also, to the argument of our 
first article, since a Judge might almost as well take counsel of his 
individual opinions and overrule laws, as on the same account 
evade them under pretence of construction. 

And first, Marshall, in the very sentence cited, refers to cases 
where " fundamental principles are overthrown, where the general 
system of the laws is departed from," &c. — clearly showing that 
he referred to violations of legal principles, not of moral ones: 
indeed, to such legal principles as this nation has adopted by its 
laws. 

This is the form in which the whole Bench of Massachusetts, 
with Parsons at their head, lay down the principle : 

" The natural import of the words of any Legislative act, according to 
the common use of them, when applied to the subject matter of the act, is 
to be considered as expressing the intention of the Legislature, unless the 
intention so resulting from the ordinary import of the words, be repugnant 
to sound and acknowledged principles of national policy ." — 7 Mass. 524. 

In the Girard case, whose exclusion of ministers from his col- 
lege was objected to as void, because contrary to religion, the 
Court say : 

"We do not claim the right, and we are not at liberty to look at general 
considerations of supposed public interest and policy, beyond those which 
the Constitution, laws, and judicial decisions make known." — 2 Hoicard, 197. 

Lord Coke has undertaken to define discretion several times ; 
and his idea of what sort of discretion Courts may exercise in these 
matters is shown by his definitions. " Discretio est discernere per 
legem quod sitjustum." (Discretion is the science of determining, 
according to law, what is just.) — 2 Inst. 298. Again; " Dis- 



56 



REVIEW. 



cretion is well described as scire per legem quid sitjustum." (To 
find out by law what is just.) — 10 Rep. 140. 
So Sir J. Jekyl : 

" Equity is said to be secundum discretionem boni vlri, (according to the 
discretion of a good man.) Yet when it is asked, Vir bonus, est quis? (Who 
is a good man ?) the answer is, Qui consultu patrum, qui leges jura que 
servat, (The one who adheres to the opinions of the fathers, to laws and to 
precedents.) " — 2 P. IVms. 753. 

We may illustrate the proper meaning of Mr. Spooner's rule by 
the construction put by the Courts upon one exactly parallel to it 
in relation to customs and usages. It is a well settled doctrine 
that " bad (wicked) customs are not law," that rules are to be dis- 
regarded if absurd or unjust. (See Blackstone and Coke.) But 
what is meant by " wicked customs " ? 

It was long the custom and rule in England that acts of Parlia- 
ment, passed the last day of the session, had the same efficacy as 
if passed i\\e first day of the session. Hence if, during the session, 
a man did an act, legal at the time, he was still liable so suffer any 
punishment, even death, afterioards prescribed by the statute. On 
this principle, acknowledged to be absurd and unjust, one man 
would have been executed, for an act which was not murder when 
he did it, unless the King had pardoned him. (1 Lev. 91.) Still 
this custom so far conformed to legal principles, that it remained 
in force three centuries, and no authority but that of the whole 
Parliament could repeal it. (See note to Blackstone, 1. 70.) Here 
we see that the Courts by wicked customs do not mean morally 
wicked, but such as violate the general system of the law. 

"Customs," says Blackstone, "must be reasonable." "Which is not 
always," says Coke, " to be understood of every unlearned man's reason, 
but of artificial and legal reason, warranted by authority of law." — Black- 
stone Comm. I. 70, 77. See other instances, 3. 430. Ston/s Equity, 1, s. 12. 

" Slavery," says Lord Stowell, one of the first Judges of the age, " never 
was in Antigua the creature of law, but of that custom which operates with 
the force of law, and when it is cried out that malus usus abolendus est^ 
(bad customs are to be abolished,) it is first to be proved that, even in the 
consideration of England, the use (custom) of Slavery is considered as a 
malus usus (bad custom) in the colonies." — 2 Hagg. Adm. 94. 

In the face of this rule, that " bad customs are not binding and 
not law," the system of villeinage (white Slavery, under which 



spooner's rules examined. 57 

men and women were bought and sold like cattle — see Stephens, 
Blackstone, Coke,) grew up from custom alone, was held legal for 
centuries, and died out only by disuse — without the enactment of 
a law in regard to it from the beginning to the end of its existence ; 
clearly showing that the Courts, in construing the word bad, in 
this connection, will have respect to the usages and laws of the 
land in which they are sitting. 

Dwarris, also, in discussing the question, whether laws against 
reason are void, says : 

" We must distinguish between right and power, between moral fitness 
and political authority. It must not be entertained as a question of c«/u'c*, 
but of the bounds and limits of legislative poicer."— p. 646. 

And Coke, even, when he went so far as to think that bad law 
might be disregarded, tells the Judges that " they are not to be 
guided by the crooked cord of discretion, but by the golden met- 
wand of the law." 

It is a general principle, that no Court will give effect to the law 
of another nation, if that law be inconsistent with sound morals. — 
See Story's Conflict of Latos. 

But who shall decide what " sound morals" are? 

The Court of King's Bench, in London, perhaps the first Court 
in the world, awarded to a Spaniard damages against an English- 
man who had taken possession on the high seas, wrongfully, of 
certain slaves belonging to the Spaniard, on the ground that 
Slavery, though contrary to justice, was not forbidden by the law 
of nations or the law of Spain. 

Contracts founded on immoral considerations are void. But 
Chief Justice Shaw stated, in the Med. case, that a contract for the 
sale of a slave, made in New Orleans, where Slavery is lawful, 
would be enforced in Massachusetts. The same doctrine was laid 
down by Mansfield, in the Sommersett case. Judge Story, even, 
while expressing a doubt as to the soundness of this opinion of 
Judge Shaw, recognizes the very principle we are illustrating, 
namely, that Courts will regulate their judicial ideas of right and 
wrong by the laws of the nation in which they are sitting. Story 
says of Shaw's statement, (Conflict of Laws, p. 259, note,) " It may 
be so here, but this doctrine, as one of universal application, may 
admit of question in other countries, where Slavery may be de- 
nounced as inhuman and unjust, and against public policy." 



58 REVIEW. 

These instances show that Courts will look to the general 
spirit of the national laws, to discover whether a rule or provision 
be immoral or inconsistent with right, and will find out " by the 
law," as Coke says, " what is justice." 

The word "merchandize" is certainly capable of an innocent 
meaning. Still in the Amistad case, the Supreme Court put an 
unrighteous meaning on it, because the laws of Spain, one of the 
parties to the treaty, did so. In that case the Court say : 

"If these negroes were lawfully held as slaves under the laws of Spain 
and recognized by those laws as property, capable of being lawfully bought 
and sold, we see no reason wiiy they may not justly be deemed, within the 
intent of the treaty, to be included under the denomination of merchandize, 
for, on that point, the laws of Spain would seem to furnish the proper 
rule of interpretation." 

The language of Lord Stowell in regard to the Slave-Trade pro- 
ceeds on the same principle : 

"I must remember that in discussing this question, I must consider it not 
according to any private moral apprehensions of my own, (if I entertain them 
ever so sincerely,) but as the law considers it. * * * An act must be 
legally criminal, because neither this Court or any other can carry its private 
apprehensions, independent of law, into its public judgments, on the quality 
of actions. It must conform to the judgment of the law upon that subject, 
and acting as a Court, in the administration of law, it cannot attribute crimi- 
nality to an act where the law imputes none. It must look to the legal stand- 
ard of morality ; and upon a question of this nature that standard must be 
found in the law of nations, as fixed and evidenced by general, ancient, and 
admitted practice, by treaties, and by the general tenor of the laws and ordi- 
nances and the formal transactions of civilized States." — 2 DodsonJldm. 2i0. 

Marshall quotes and endorses this in 10 Wheaton 66, cited in 
our first article. 

Sir Wm. Grant, in the case of the Amedie, 1 Acton, 240, says : 

"Whatever opinion, as private individuals, we might before have enter- 
tained upon the nature of this trade, no Court of Justice could with propri- 
ety have assumed such a position (that it was contrary to the principles of 
justice and humanity) as the basis of its decisions, while the trade was permit- 
ted by our laws." 

The language of our Supreme Court, whenever the justice of In- 
dian land titles has come before them, will show the same principle. 
In 8 Wheaton, 543. Chief Justice Marshall : 



spooner's rules examined. . 59 

" We will not enter into the controversy whether agriculturists, merchants, 
and manufacturers have a riglit, on abstract principles, to expel hunters. 
Conquest gives a title, which the courts of the conqueror cannot deny, what- 
ever the private and speculative opinions of individuals may be respecting the 
original justice of the claim. However extravagant the pretension of con- 
verting the discovery of a country into conquest may appear, if the principle 
has been asserted in the first instance and afterwards sustained ; if a country 
has been acquired and held under it; if the property of the great mass of the 
community originates in it; it becomes the law of the land and cannot be 
questioned. * * * However the restriction may be opposed to natural 
right, if it is indispensable, it may, perhaps, be supported by reason and cer- 
tainly cannot be rejected by Courts of justice." 

In 4 Howard, 572, the Supreme Court say of the same point, 
Indian titles : 

"It would be useless, at this day, to inquire whether the principle thus 
adopted is just or nut. 

"If it were an open question, it would be one for the law-making depart- 
ment of the Government, and not for the judicial. It is our duty to expound 
and execute the law as we find it, and we think it too firmly and clearly 
established to admit of dispute." 

If, therefore, Mr. Spooner shall urge the Supreme Court to reject 
the plain meaning of any clause of the Constitution because that 
meaning sanctions an unjust system, that Court will naturally ask 
him whether the general system of American law, at the time the 
Constitution was made, looked upon that system as unjust and ille- 
gal ? We say, at the time the Constitution was made — for con- 
tracts are to be held void or valid according as they are illegal at 
the time they are made. — See Comyns Con. I. 31 : see Spooner, 
p. 124. On this principle will not the Courts consistently decide 
that a pro-slavery meaning of the National Constitution cannot be 
held immoral or inadmissible, since twelve of the thirteen States, 
which made it, held slaves at that time, and one-half of the nation 
still continues so to do? Or take the principle as Judge Marshall 
himself has laid it down, 4 Wheaton, 202. 

"If in any case, the plain meaning of a provision is to be disregarded, be- 
cause we believe the framers of the instrument could not intend what they 
say, it must be one in which the absurdity and injustice of applying the pro- 
vision to the case, would be so monstrous that all mankind would, without 
hesitation^ unite in rejecting it." 



60 REVIEW. 

This is the explanation which the Supreme Court give of their 
own language and meaning. And could they, sitting at the capital 
of slaveholding States, under a Constitution practically pro-slavery 
ever since its existence, — making a part of that Christendom, more 
than half of which now hold slaves, and the international law of 
which they have so often decided does not hold the Slave-Trade to 
be a crime, could they, with either truth or decency, affirm that the 
existence of a pro-slavery clause in that Constitution would be so 
"monstrous an absurdity and injustice that all mankind would, 
without hesitation, unite in condemning it?" This they must do 
before Mr. Spooner's maxim will apply to the subject of Slavery. 

We conclude, then, 1st. That in deciding whether a possible 
meaning of any clause be immoral or not. Courts will have regard 
to the general system of National Law under which they sit. 

2d. That Slavery neither can be, nor has been, by the law of 
nations, or our own laws, held criminal, however the law of nature 
may view it. 

SLAVE TRADE. 

Having settled, then, the real meaning of these rules, let us pass 
to the other clauses of the Constitution, alluded to by Mr. Spooner, 
We shall dispose of them as briefly as possible : 

" The migration or importation of such persons as any of the States now 
existijic shall think proper to admit, shall not be prohibited by the Congress 
prior to the year one thousand eight hundred and eight, but a tax or duty may 
he imposed on such importation, not exceeding ten dollars for each person." — 
U. S. Cons. Art. 1, Sec. 9. 

On this clause Mr. Spooner remarks that " importation " is some- 
times used in reference to the voluntary arrival of foreigners, and 
has no necessary reference to slaves. Granted : still its ordinary 
and common use is to describe the bringing into a country, of arti- 
cles of merchandize and for sale. Mr. Spooner says, p. 83, that 
migration means going out from a country, and hence argues that 
importation is used as its opposite, and refers simply to persons 
coming in. This construction is unsound ; because the dictionary 
tells us that migration means merely "change of place." Emigra- 
tion is used when we speak of going out of a country. Beside, it 



SLAVE TRADE. 61 

is "the migration or importation of such as the State will admit." 
We admit people in, never out of a country. Both words, there- 
fore, refer to persons arriving; and they either relate, as Marshall 
says, (9 Wheaton, 216,) " migration to voluntary arrivals, and impor- 
tation to involuntary," — which would settle it that nothing else but 
the Slave-Trade could be referred to, — or migration means motion 
on land, and importation arrivals by sea. In the Declaration of 
Independence, which would be good authority in this case, the 
word " migration " is used to mean all voluntary arrivals by sea or 
land. 

Mr. Spooner claims that this clause must refer to the arrival of 
foreio-ners only, and have no reference to slaves, because that is the 
only innocent meaning which can be given to it. 

We reply, 1st. If it refers to the arrival of foreigners merely, what 
is the reason of the provision? Why was Congress allowed to tax 
them until 1S03, and no longer ? And after that date allowed to 
prohibit their arrival altogether ? Such an arrangement seems 
entirely unintelligible ; and it is indispensable to make sense of an 
instrument. Any construction which makes nonsense is to be re- 
jected. See Dvvarris, Blackstone, Marshall. 

Again; does Mr. Spooner really maintain that this clause, so 
harmless in appearance, gives to Congress the monstrous power of 
prohibiting forever any loreigner from landing on our soil ? and, 
(on his meaning of " migration,") of prohibiting every citizen from 
ever leaving it ! ! ! Such a power some might think more inconsist- 
ent " with natural right," than the one he is striving to avoid. It 
can be only vindicated on the score of being absolutely necessary ; 
and if absolutely necessary now, how were we safe in forbidding it 
to Congress for twenty years, till 1808 had arrived? If necessary 
now, why not then ? 

These considerations are sufficient to show that the meaning Mr. 
Spooner placed upon this clause cannot be the true one. If, on 
the contrary, we take it as it has usually been taken, to refer to the 
Slave-Trade, it becomes consistent and intelligible, and does not 
confer upon Congress such a fearful power as that of, at any time 
forbidding natives to leave, and foreigners lo land in, the country. 
Beside, this meaning is legally innocent, as we have above explain- 
ed the meaning of the word, that is, taken in connection with our 
national laws and institutions. For instance, not only the State 
6 



62 REVIEW. 

slave laws, (which we shall by and by prove Constitutional and 
valid,) but our slave basis of representation, and our Ordinance of 
1787, expressly guaranteeing the surrender of fugitive slaves, &,c., 
&/C., as well the Constitutional provision on that point, to which we 
now pass. 

FUGITIVE SLAVES. 

'■^ JVo person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor ; but shall be delivered up on claim 
of the party to whom such service or labor may be due." — U. S. Cons., Art. 
4, Sec. 2. 

Mr. Spooner's argument on this clause is the following : — 
(p. 68, (Stc.) 

1st. " ' The clause must be construed, if possible, as sanctioning nothing 
contrary to natural right.' It may refer to apprentices, &c. ; hence, not 
being ' expressed with irresistible clearness,' it is not necessary to apply 
it to slaves, and being not necessary, it is not allowable to do so. 

2d. " ' Held to service or labor ' is no legal description of Slavery. 
Slavery has no necessary reference to ' service or labor ; ' it is property 
in man." 

3d. " 'Under the laws thereof.' There vvere no Constitutional or valid 
laws in the States, relating to Slavery, at the time the Constitution was 
adopted." 

This is his argument ; let us look at it. In the first place, we 
deny that his rules have any place here, since the legislative inten- 
tion, of referring to slaves, is "expressed with that irresistible 
clearness," which the Court require. For it is a fundamental rule 
of interpretation, that all statutes relating to one subject are to be 
taken together, and any phrase in one is to be explained by refer- 
ring to the use of the same phrase in the others. 

Lord Mansfield says: (1 Burr, 447.) 

" Where there are different statutes in pari materia, (on the same subject,) 
though made at different times, or even expired, and not referring to each 
other, they shall be taken and construed together, as one system, and as 
explanatory of each other." 

This rule has been recognized and acted on by every Court 
in this country and England. See the Digests. 



FUGITIVE SLAVES. 63 

Now in 1787, the same year that the Constitution was drafted, 
Congress passed the Northwestern Ordinance, which says : 

" There shall be neither Slavery nor involuntary servitude in said terri- 
tory, otherwise than in the punisliment of crimes, whereof the party shall 
have been duly convicted: Provided always, that any person escaping into 
the same, from whom labor or service is lawfully cLAiaiEo in any 
one of the original States, such fugitive may be lawfully reclaimed, and 
conveyed to the person claiming his or her labor or service, as 
aforesaid." 

This refers to Slavery, for it says so. It refers to American 
Slavery, for it was that which it proposed to exclude from this 
Northwest Territory. But when it provides for the surrender of 
fugitive slaves, it describes them as "persons from whom labor 
OR service is lawfully claimed." 

Now in that same year, 1787, the Constitution was drafted. We 
might expect a similar provision, and we find that, in providing for 
the surrender of certain persons, it describes them as " persons 
held to service or labor, under the laios, to be delivered up on 
claim," &c. 

The descriptions are exactly alike, and must refer to the same 
case. Any Court would hold, and be justified in holding, under 
Mansfield's rule, that the meaning — to wit, the surrender of fugi- 
tive slaves — was " expressed with irresistible clearness." 

We might stop here, as having made out our case ; but we are 
willing to meet Mr. Spooner on his own ground. 

The Supreme Court, and the nation at large, interpret this 
clause to refer to slaves, and to mean that no State shall shelter 
them, but shall allow them to be taken, from its limits, back to 
Slavery. 

Mr. Spooner thinks this meaning inadmissible, because " con- 
trary to natural right ; " we allow that the provision is infamous. 
But is the world agrefed on this point? The Court must certainly 
refer to some standard. Is the world then agreed on this point? 
The English and French Courts, and our own, have held that, 
in the absence of express legislation, a slave ouo-ht not to be 
returned to his prison-house. But the writers on Jurisprudence 
maintain that a law to return him, if made, is " no encroachment 
on the rights of the fugitive, for no stranger has any just claim to 
the protection of a foreign State against its will, and each State 



64 REVIEW. 

has a right to determine who may come to reside, or seek shelter 
within its limits." Such was the opinion of Shaw, even in his 
noble judgment in the Med. case, and of Best, the distinguished 
English Judge, in an equally famous case in the annals of Liberty, 
2 B. & C. 46S. Mr. Spooner himself has just told us that the 
innocent meaning of the Slave-Trade clause of the Constitution is 
not that which expressly gives Congress power, after a time, to 
destroy that trade, but a construction which secures to Congress 
the power, after 180S, of prohibiting any foreigner from landing 
on our soil ! What is this but an endorsement, by Mr. Spooner, of 
the views of Judges Shaw and Best, and the writers generally, thai 
every State may just Ii/ determine for herself who shall seek shelter 
within her limits ? It is not then so very evident, that the verdict 
of the world in general would consider a clause, refusing slaves a 
shelter, as contrary to natural right. To what standard, then, shall 
the Courts have recourse? To that of our national system of law? 
That has generally been considered to sanction Slavery, and before 
we close we shall see if it does not actually do so. Its Ordinance 
of 1787 expressly orders the surrender of slaves. If it does, of 
course, judged by that test, the Court could not pronounce such a 
construction " bad," in a legal sense. 

In reply to Mr. Spooner's first point, then, we say, let him show 
by the general assent of the world, that the refusal of a sovereign 
State to shelter slaves is contrary to natural right. The Abolition- 
ists think so. I wish they were a majority — unfortunately they 
are not, and the verdict of the world is against them. 

Certainly the case is not one where, in the language of Chief 
Justice Marshall, " the absurdity and injustice is so 7nonstrous that 
all the world would, toithout hesitation, unite in rejecting it ; " and 
such it must be, before the Court will feel justified in disregarding 
the plain meaning of a clause. 

Again ; to justify him in calling upon our Courts to esteem such 
a construction bad, he must show it to be " bad," /. e., contrary to 
the general system of our law. They cannot " attribute criminality 
where the law imputes none." Now the Ordinance of 1787, still in 
force, establishes just this arrangement for the Northwest Terri- 
tory. The Courts of such a nation would no more feel entitled, 
in such circumstances, to call it bad, than a Court in a slave State 
would refuse to enforce a slave contract, under the plea that it was 
immoral. 



FUGITIVE SLAVES. 



65 



The reader will observe that the question is not now what he or 
we think wrong, but what is so generally regarded as wrong and 
monstrous by all mankind, or by the law, that the Courts may 
ground their decisions on such opinion. 

Mr. Spooner's second point is that : 

" ' Held to service or labor ' is no legal description of Slavery. Slavery 
has no necessary reference to « service or labor; ' it is property in man." 

This is originally T. D. Weld's argument. Anything from him 
deserves the most respectful attention. 

" The terms of the Constitution,'' says Marshall, "must be understood in 
that sense in which they were universally received in this country when the 
Constitution was framed ^ — 4 Crancb, 477. 

To this well settled and reasonable principle Mr. Spooner 
assents, (p. 124 :) 

" The only question is, what was the meaning of the Constitution, as a 
legal instrument, when it was frst drawn up and presented to the people and 
before it was adopted by them .-' " 

This, too, is the rule by which we interpret Shakspeare, or any 
writer — turning to the dictionaries of his period, io find the mean- 
ing of the terms he uses. 

Now, how was Slavery defined in 1788, and previous to, and 
about that period ? We have seen how the nation itself described 
a slave in the Ordinance of 1787 : 

"A PERSON FROM WHOM LABOR OR SERVICE IS LAWFULLY CLAIMED." 

"No negro child shall be held in servitude, &c., notwithstanding the 
parent of such child was held in servitude at the time of its birth," &c. — 
Connecticut Emancipation .4ct, 1784. 

«« Slavery is an obligation to labor for the benefit of the master, without the 
contract or consent of the servant."— Paley, Definition of Slavery, 1785. 

Obligation comes from the Latin word to bind or hold. 
Hargrave, in his defence of Sommersett, before Lord Mansfield, 
1772, gives us a definition of Slavery, which begins thus : 

" Slavery imports an obligation of perpetual service." 

Grotius's definition is this : 

" Slavery is an obligation to serve another for life, in consideration of 
being supplied with the bare necessaries of life." 
6* 



66 REVIEW. 

Rutherforth, about 1770, defines it : 

" An obligation to be directed in all one's actions.' 

Johnson's Dictionary, 1755 : 

«' Slave, one mancipated (bound) to a master." 

Bailey's Dictionary, the best of his day, edition of 1782 : 

" Slave, a perpetual servant ; a person in the absolute power of a master." 

Ash's Dictionary, 1775 : 

"Slave, one sold to a master, one sold to labor." 

The Constitution of Vermont, about the same period, 1793, pro- 
vides that : 

<' No male person ought to be holden by law to serve any person as a ser- 
vant, slave, or apprentice.* 

Mr. Spooaer thinks, (p. 73,) that "bound to service" and "held 
to service " are the same thing. Now, bondman (boundman) is the 
old and usual English word for slave, and bondage for Slavery. It 
is so used in the Bible. We get slave from the Russian and kind- 
red languages — villein from the French, and servant from the 
Latin, servus, a slave. Bondage and bondman are Saxon. " Held 
and holden" are still the popular description of slavery. For we 
say slave/toWer, seldom slaxeotoner. 

Again, as to "service" having no relation to Slavery; service, 
servant, and servitude, are all derived from the Latin word for slave, 
SERVUS ; and they have been always used to designate Slavery. 
Joseph, who was bought by Ishmaelites and paid for, was called, in 
King James's translation, 1611, a servant ; so of others. '' 

So much for Mr. Spooner's idea that, in 1788, "service and la- 
bor " did not enter into the idea of Slavery. 

Such, then, were the common, popular, philosophical, and legal 
descriptions of Slavery in 1788. I know that the law sometimes 
uses the technical terms " chattel personal," to describe a slave. 
But the makers of the Constitution were not obliged to use techni- 



* Stephens, — the relative and coadjutor of Wilberforce, — in his learned 
work on the "Law of Slavery in the West Indies," gives, as late as 1820, a 
definition of slavery similar to these — " Slavery is constrained servitude 
during the life of the slave, — it is service without wages." 



DOMESTIC INSURRECTIONS. 67 

col terms. In framing a popular instrument for the use of the 
whole people, they naturally would avoid technical terms ; this 
they have always done where they could, and used instead the terms 
common in the dictionaries and writers of the day. The above 
quotations show that, in 1788, " service and labor" were thought to 
make a part of Slavery, and that slaves were usually, if not always, 
described as persons held, bound, and sold to service or labor. Be- 
side, the provision was meant to cover many States and only the 
most universal definition would suffice. It would not do to describe 
them as " chattels personal ; " that might include South Carolina; 
but Kentucky, and now Louisiana, consider them real estate; in 
in such case, the term would not be broad enough. Again, had 
they been called, generally, properly, such a term would hardly 
have included the thousands in Rhode Island, Connecticut, and 
Pennsylvania, then held in a modified Slavery created by recent 
laws. 

Judged, then, by the usage of 1788, the term " held to service 
or labor" does aptly describe the condition of a slave, and was 
the phraseology usually employed for that purpose. This is our 
answer to Mr. Spooner on this point. 

Lastly, " under the laws thereof." Mr. Spooner says this implies 
Constitutional laws. He is right. We shall discuss this under our 
last division. 

DOMESTIC INSURRECTIONS. 

With regard to the clauses giving the General Government 
"power to suppress insurrections," and guaranteeing the States 
*' against domestic violence," the only objections Mr. Spooner 
makes to their applying to slave insurrections is, 

1st. That the word " insurrection," refers to rising against the 
laws, and as, in his opinion, there are no valid slave laws, there 
can be no slave insurrections. The discussion of this point comes 
under our third head. We may remark that the phrase, " domestic 
insurrections," is used in the Declaration of Independence, with 
reference, it would seem, to slave risings; if so, this use of it 
would go far to settle its meaning here. 

2d. Mr. Spooner says the Government of the States must be 
republican, and no Republic can hold slaves; hence the above 



68 • REVIEW. 

clauses cannot apply to slaves. This point, also, (the meaning of 
the word "Republic,") we shall consider in a moment. 

If we shall remove these two difficulties, as we trust, in the 
proper place, to do, to the reader's satisfaction, we shall then have 
the right to rank these clauses with their pro-slavery brethren. 

CITIZENSHIP, &c. 

Mr. Spooner now passes to the consideration of those clauses 
which he considers as positively authorizing the Supreme Court to 
declare Slavery illegal, and the slave free. There is no dispute 
between us that Slavery is illegal in the District of Columbia, and 
in the Territories. Mr. Spooner maintains further, that Slavery 
is illegal in the several States, and that the Supreme Court has 
authority to set the slaves there free. We shall dispose of his 
points as briefly as possible. 

1st. He says the Constitution made citizens of " all the people 
of the United States," living in 1789. No citizen can be a slave : 
hence, the negroes, being citizens, are free. 

We reply : The Constitution did not make citizens of all the 
people, &.C. The Indians, for instance, were people, residing and 
born within the limits of the United States. That the Constitu- 
tion did not make them citizens is very evident from the fact that 
they are several times referred to in it, as an independent body, 
under the name of "the Indian tribes." (See, also, 5 Peters, 1.) 
This shows that we are to consult the other parts of the Constitu- 
tion to discover in what sense to interpret the word people. This 
is not unusual. The word " commons," in England, is sometimes 
used to designate the House of Commons, sometimes all persons 
not noble, and sometimes those only who vote. The question, 
who were made citizens in 1789, is one of legal construction. It 
has been universally decided that no one was then made a citizen 
of the United States, who was not previously a citizen of one of 
the several States. (See 7 Wh. 545, and 4 Johns. 75.) That it 
was not intended to include the slaves under the phrase, " people 
of the United States," or to make citizens of them, is evident from 
the various slave clauses which we have been considering. General 
terms are always to be restrained by any special clause in an 
instrument. — Bacon's Abr. Statute. Dwarris, 765. 



CITIZENSHIP, ETC. 



69 



Hence the general terms of the Preamble are to be restrained 
by the special pro-slavery clauses. Indeed, according to legal 
rules, on which Mr. Spooner professes to rely, the Preamble is no 
part of a statute, and is not to be taken into account except when 
it will help to explain an ambiguity. — Bacon's Abr. Statute. 
Kent, 1. 460. Dwarris. 

We cannot leave this point without adducing a specimen of the 
loose logic of this much-praised essay. Mr. Spooner argues (pp. 
101, 131,) that because the Constitution speaks of "natural born 
citizens," therefore, all natives are citizens. Whether the fact be 
so or not, this phrase proves nothing either way. The argument 
is sheer nonsense. On such a principle, when one speaks of 
"English noblemen," he implies that all Englishmen are noble; 
or of "Yankee pedlers," that every Yankee is a pedler; or of 
"natural born fools," that all persons born in the course of nature 
are fools ! This is very bad logic. Some fools may be born such, 
but this does not prove that all persons born in the course of 
nature are fools. So of "natural born citizens;" some citizens 
may be native and some not, but this does not show that all natives 
are necessarily citizens. If the fact be so, it must be proved in 
some other way. 

2d. " Congress have the power to lay a capitation or poll-tax. 
Upon whom shall it be levied ? Is the Government under the 
necessity of taking notice of the fact of Slavery?" &c. &,c. (p. 94.) 
To these questions Mr. Spooner answers "No," and hence con- 
cludes that a man, subject to such a poll-tax, cannot be a slave. 
We forbear to say that the premise and conclusion have no con- 
nection with each other — that answering the question either way 
proves nothing. It is enough to ask the reader to remember that 
" all direct taxes," (and such are poll-taxes,) are to be levied on 
" free persons, and threc-Jifths of all other persons." The meaning 
of that clause we think we have settled ; and hence the Constitution 
itself determines what is to be done with poll-taxes when levied on 
slaves. It recognizes, in such case, the condition of Slavery, and 
provides for it. 

We group together the seven next points made by Mr. Spooner. 
Referring to the exclusive power of Congress over Commerce, the 
Post Office, Patents, and the Militia; also to the States being 
forbidden to interfere with the obligation of contracts ; he says, 



70 REVIEW. 

slaves have, equally with other persons, unless Congress forbid it, 
the right to trade, to take out patents, to receive letters, to enlist, 
to make contracts, Slc. &c. Hence as the State laws which make 
them slaves, practically forbid these things, they are unconstitu- 
tional and void, and all persons held by them ought to be set free. 
We reply, that if we have made out to the satisfaction of the 
reader the true meaning of the slave clauses, as they are called, 
then, as the Constitution recognizes the existence of Slavery in the 
States, all these general provisions must be understood in a limited 
sense, and interpreted so as to be consistent with those other 
clauses : this is the universal rule. 

Though it is not necessary to go further, still we may remind the 
reader that State laws fix the time at which persons shall be deem- 
ed of age ; that until that period a man is debarred from most of 
the facilities of trading ; if he takes out a patent it is not his, but 
his father's; he cannot make contracts except in special cases, of 
necessity, &.c. So of convicts; the laws which doom them to 
prison prevent them from enlisting, trading, receiving letters, and, 
to a great extent, from making contracts. In a word, the same dis- 
abilities, in most of these particulars, which State laws impose on 
the slave, the same State laws impose on every person under twenty- 
one years of age, every married woman, and every convict. 
Still no one ever thought of contending that, in virtue of these pro- 
visions in the Constitution, Congress had a right to set aside the 
State laws relating to infancy, marriage, and imprisonment ; but 
it has the same right to do so, as it would have to interfere with slave 
laws on these accounts. 

As for enlistment, we presume Congress would have a Constitu- 
tional right to disregard infancy, at least to some extent. Public 
necessity justifies it. And the same public necessity would justify 
their enlisting slaves, without engaging to compensate their masters. 
Such laws, we believe, were enacted during our Revolution. See 
Remarks of Patrick Henry, in Virginia Conv., 1788. But this no 
more proves that, ordinarily, the master has not the legal right to 
the service of his slave, than the same power over minors proves 
that parents, because such may be enlisted, have not ordinarily the 
right to their earnings. The truth is, Mr. Spooner perpetually for- 
gets that the United States Constitution has nothing to do with the 
municipal rights or private relations of men ; all these are left to 



REPUBLICAN GOVERNMKNT. 71 

be regulated by the States. They are to say who shall vote, who 
shall inherit property, who shall marry — who shall make con- 
tracts, &.C., &c. 

" States shall make no law impairing the obligation of contracts," 
says the United States Constitution. But a slave cannot make con- 
tracts. Hence, says Mr. Spooner, any State law which makes a 
man a slave is inconsistent with the above provision. 

But marriage is a contract. Yet Massachusetts says, " no man 
shall marry his sister." This is, in Mr. Spooner's sense, hindering 
a man from making a contract — it is so far preventing him from 
forming this contract. But is there any one who supposes that the 
law is inconsistent with the above provision in the Constitution? 
Our space forbids us to enlarge, but any one may for himself illus- 
trate in various particulars, the absurd consequences of this posi- 
tion of Mr. Spooner's. 

3d. Mr. Spooner quotes the second amendment — "the right of 
the people to keep and bear arms shall not be infringed," — and 
Art. 1. Sec. 9, as to habeas corpus. 

We have so recently and so much at length, (in our reply to Mr. 
Goodell,) shown that these amendments, &c, do not restrain the 
States, but only the General Government , from the various things 
therein mentioned, that we shall not enlarge, simply referring the 
reader to the following cases where the point is not only decided, 
but most indispiitetbly proved, by Marshall, 7 Peters, 243; 2 
Cowen, 818 ; 3 Cowen, 686 ; 12 Ser. & R. 220 ; 8 Wendell, 85 ; 
10 Wendell, 449. These are, with one exception, cases in free 
'States, and none of them had any connection with the question of 
Slavery. See also the elaborate and conclusive argument of Judge 
Jay, in the Emancipator, May 31, 1838. 

The States, therefore, may establish slavery, even if such a sys- 
tem be contrary to these clauses. 

We were surprised that Mr. Spooner allowed this careless mis- 
take to be perpetuated in a second edition. 

REPUBLICAN GOVERNMENT. 

4th. Mr. Spooner's last point is that the "United States shall 
guaranty to every State a republican form of government," &,c. 
Mr. Spooner says, (p. 106 :) 



72 REVIEW. 

"It is indispensable to a republican form of government, that the public, 
the mass of the people, if not the entire people, participate in the grant of 
powers to the Government, and in the protection afforded by the Government. 
It is impossible, therefore, that a Government, under which any considera- 
ble number of the people, (if indeed any number of the people,) are disfran- 
chised and enslaved, can be a republic. A slave Government is an oligarchy ; 
and one too of the most arbitrary and criminal character." 

The italics are our own. 

If this be his opinion, then we can only say, that Mr. Spooner's 
idea of a republic does not agree with that described in the Consti- 
tution itself! Which is to have the preference the reader will de- 
cide. 

It will certainly be allowed that the word " republic " is of a very 
vague character. Mr. Jefferson (vol. 4. 275,) allowed, in his day, 
that it had been applied to almost every description of Government, 
Holland, Genoa, Switzerland, Venice, Poland, &,c. Madison (Fed- 
eralist, No. 89,) confesses that if we refer to usage, no satisfactory 
definition can be given. And to what but usage do we refer to find 
the meaning of words? It is by such a chameleon test as this, — 
a word of which no satisfactory definition could be found in 1788, 
that Mr. Spooner proposes to decide the character of the Constitu- 
tion and the extent of the powers of the Supreme Court ! ! ! 

Mr. Spooner decides that no State can be a republic unless "the 
mass of the people, if not the entire people, participate in the grant 
of the powers to the Government." Now it happens that the Con- 
stitution itself directs, that " the electors of Congress, in each State, 
shall have the qualifications requisite for electors of the most nu-- 
merous branch of the State Legislature," thereby distinctly and ex- 
pressly recognizing the right of each State to determine how many 
of its citizens shall vote, that is, shall participate in the grant of 
power to Government. 

Hence if the States choose (as all States always have done) to let 
only half of the " entire people" (to wit, the men) vote, they are 
allowed to do so — if they choose to go further, and allow only one- 
half of the men (that is, only those above twenty-one years old) to 
vote, they may; — and thus base the powers of Government, not as 
Mr. Spooner requires, on the " entire people," but on one quarter 
of them ; all this the Constitution recognizes! So of other dis- 
qualifications. Yet this Mr. Spooner tells us is inconsistent with 



REPUBLICAN GOVERNMENT. 73 

his idea of a republic. If so, we can only reply, that the Constitu- 
tion of the United States has the misfortune to differ from Mr. Ly- 
sander Spooner in this particular. 

The reader will hence perceive that any definition of a republic, 
which is got up in order to make Slavery inconsistent with it, will 
be found equally inconsistent with what the Constitution confessedly 
permits, namely, that the States should regulate for theraselves who, 
and how many, shall be permitted to participate in the Government. 
This being the case, all such definitions are proved absurd, (logi- 
cally we mean,) and must be thrown aside. 

It is very easy for Messrs. Spooner and Goodell to frame their 
own definitions of words, and then proclaim certain other things 
utterly inconsistent with those definitions. But if we recur to the 
dictionaries, either of that period or of our time, we shall find that 
Madison was perfectly right in saying that no strict definition could 
be given of the word " republican." We give a few definitions 
that the reader may see how extremely indefinite these standard au- 
thorities have always held the word to be. 

" Republic : A State in which the exercise of the sovereign power is lodg- 
ed in representatives elected by the people." — Webster, 1845. 

"Republic: That form of government in which the supreme power is 
vested in the people, or in representatives elected by the people. A repub- 
lic may be either a democracij or an aristocracy ; in the former the supreme 
power is vested in the whole body of the people or in representatives elected 
by the people ; in the latter it is vested in a nobility, or a privileged class of 
comparatively a small number of persons." — Worcester, 1846. 

"Republican (subs.): One who thinks a commonwealth without mon- 
archy the best Government. 

" Republican (adj.) : Placing the Government in the people. 

"Republic : A Commonwealth — State in which the power is lodged in 
more than one.'' — Dr. Samuel Johnson, 1755. 

" Republic : A Commonwealth without a King." — Walker's School Dic- 
tionary. 

"Republic : A Commonwealth without a King." — Perry, 1775. 

"Republic: A Commonwealth, a free sort of Government, where many 
bear rule." — Bailey, 1730. 

"Republic : A Commonwealth, a free State." — Bailey, 1782. 

"Republic: A Commonwealth — A State or Government in which the 
supreme power is lodged in more than one." — £sh, 1775. 

7 



74 REVIEW. 

Montesquieu, Spirit of Laws, 1750, defines a Republic to be, 
" a Government where the people, in mass, or only a part of the 
people, possess the sovereign power." The first he considers a De- 
mocracy, — the second, an Aristocracy ; but includes both under 
the term Republican. 

The above citations show us how entirely loose and indefinite 
the use of the word has always been. 

What, then, is the meaning of this clause ? We answer, it is a 
general guarantee of the State Governments as they then existed; 
it undertakes to secure to the States, Governments similar to those 
they then had. The reader will please to recollect our authorities 
for the rule of construing the Constitution, as the words were used 
and understood at the time. (4 Cranch, 477 ; Spooner, p. 124.) 
In the light of this rule, let us look at this clause. And first, what 
is the meaning of the word '^guaranty." 

" To guaranty a republican form of government," says Madison, (Feder- 
alist, 43,) " SUPPOSES A PRE-EXISTING GOVERNMENT OF THE FORM WHICH 

IS GUARANTIED. As long, therefore, as the existing republican forms are 
continued by the States, they are guarantied by the Constitution." 

Attain ; "It is sufficient for such a Government that the persons adminis- 
tering it be appointed either directly or indirectly by the people, &c. ; 
otherwise, every Government in the United States, as well as every other 
popular Government, that has been, or can he well organized or well exe- 
cuted, would be degraded from the republican character." — Federalist, 39. 

We cite these sentences, from a source which Mr. Spooner's 
friend Goodell acknowledges to be a competent one, to show how 
the word "republican" and the word "guaranty" were under- 
stood in the year 1788. The meaning affixed to the latter no one 
will deny. It implies that the Governments then cristing were 
republican. We guaranty a thing in existence, not a thing to be 
afterwards created. 

Again; Madison, one of the best of witnesses, acknowledged to 
be competent, after entering at large into the history of the word, 
and contending that it should have some strict and definite mean- 
ing, goes on deliberately to apply the epithet to thirteen States, 
twelve of which then held slaves. In the face of such authority as 
this, as well as the fact, that the mass of men in the old republics, 
from whom we copy the word, (Athens, Sparta, Rome,) were 
slaves, — and that in Holland and Italy, their modern imitators, 



NO LEGAL SLAVERY IN THE COLONIES. 75 

not one man in a thousand had any share in the Government, — 
who will undertake to say that this word, either in its general 
sense, or as used in our Constitution, has any necessary inconsist- 
ency with Slavery? If there be such a man, he must find some 
other and better authority for his meaning than ihe general use 
and understanding of the word ; and that has hitherto, at least, 
been considered the only test. Indeed, what better evidence could 
we have of the general use of the word at that time, than the fact 
that the delegates of twelve slave Governments deliberately applied 
it to themselves. They surely did not mean to cut their own 
throats, or to use words not descriptive of things. Hence it must 
be presumed that the word " republican," in 1788, did not exclude 
the idea of Slavery. Any other construction makes the public of 
that day absolute fools. 

These are all the arguments adduced in support of Mr. Spoon- 
er's assertion that the Supreme Court is authorized to set free the 
slaves in the several states; — that is, to uproot the foundations of 
political supremacy, and dry up the chief source of what the law 
calls property, in one-half of the Union. We think them utterly 
weak, fanciful and unsound ; at the best, mere twigs and cobwebs, 
upon which to hang so weighty and important, (though desirable,) a 
power. When placed side by side with the pro-slavery clauses of 
the Constitution, and construed, as they must be, in connection, 
these arguments become entirely unworthy of notice. 



NO LEGAL SLAVERY IN THE COLONIES. 

Having finished the consideration of Mr. Spooner's first two 
points, — namely, that the people never intended to sanction Slavery, 
— and that even if they did, the Constitution, legally interpreted, 
does not sanction it, — we pass to his third and last argument : 

That there was no Constitutional or legal Slavery existing in the 
States in 1789, to which the pro-slavery clauses, if there really are 
any, in the United States Constitution, could apply, or can new 
apply. In attempting to sustain this position, he argues as follows : 

1st. The Colonial Charters did not authorize the establishment, 
of Slavery here. 

2d. The English statutes never recognized it. 



76 REVIEW. 

3d. If it were tolerated here, the decision of Lord Mansfield, in 
the Sommcrsett case, 1772, put an end to its legal existence. 

4th. The Colonial Statutes establishing it were void, because they 
did not sufficiently define the persons who were to be slaves. 

5th. The Declaration of Independence abolished it. 

6th. The Articles of Confederation do not refer to it: and the 
State Constitutions of 1789 are either inconsistent vviih the exis- 
tence of any such institution, or wholly silent about it. 

We shall notice each of these points in order, and as briefly as 
possible. 

1st. " The Colonial Charters did not authorize the establishment 
of Slavery here." 

Mr. Spooner says, (p. 21) : 

" The general provisions of those charters, as w'lU be seen from the ex- 
tracts given in the note, were, that the laws of the colonies sliould not be re- 
pugnant or contrary, but, as nearly as circumstances would allow, conform- 
able to the laws, statutes, and rights of our kingdom of England." 

Slavery, he thinks, utterly inconsistent with the common law, 
which was adopted throughout the colonies. To this point he cites 
the following language of the Supreme Court, who, quoting the 
New Hampshire Charter, remark upon it thus : 

" The charter of New Hampshire provided, 'So always that the form of 
proceeding in such cases, and the judgment thereupon to be given, be as con- 
sonant and agreeable to the laws and statutes of this our realm of England, 
as the present state and condition of our subjects inhabiting within the limits 
aforesaid, (i. c. of the province,) and the circumstances of the place will ad- 
mit.' Independent, however, of such a provision, we take it to be a clear 
principle that tiie common law in force at the emigration of our ancestors, is 
deemed the birthright of the colonies, unless so far as it is inapplicable to 
their situation, or repugnant to their other rights and privileges. .^ fortiori 
the principle applies to a royal province." — 9 Cranch's United States' Re- 
ports, 332 — 3. 

To this we reply: Slave Laws are not repugnant, or contrary, 
to the laws of England. Till within a few years of the date of these 
Charters, villeinage, white slavery, existed in the mother country, 
and at the time they were made, the system was not illegal. Be- 
sides, laws rewulatinsf the slave trade were common on the Enslish 
statute book, from this time down to 1807. See also remarks of 
Lord Stowell, in 2 Hagg. Adm. 94. Waiving all this, nothing more 



NO LEGAL SLAVERY IN THE COLONIES. 77 

is necessary, than to point the reader to the qualifications contained 
in the above extracts. The laws are to be conformable to English 
law, " as nearly as circumstances allow,'' " as the present state and 
condition of our subjects, and the circumstances of the place will 
admit." The common law is adopted, " unless so far as it is inap- 
plicable to their situation," &,c. Now these exceptions are broad 
enough " to drive a coach and six through," as was said of a famous 
English statute : or as we once heard Elihu Burritt assert, " If you 
make a breach in the golden rule, no matter how small it be. Hell 
and all its legions can pass through." 

The Colonial Assemblies and the King were to judge how far, 
and when " circumstances," and " their state and condition," &c. 
&c., rendered it necessary to depart from their English model. 
The only question is one of fact and history ; how far did they find 
it necessary to do so, and what laws did they enact in consequence? 
If we open the Statutes enacted by these colonies under their Char- 
ters, and approved by the Kings, who granted the Charters, we 
shall find they all legalized the Slave-Trade and Slavery. It is too 
late now to say that such acts were not warranted by their Charters. 
They were the judges whether, and how far, it was necessary to 
vary from English law, and they have declared, by their acts, that 
they judged it necessary. Their decision, when approved by the 
King, is final. There is no appeal. As Mr. Spooner does not 
deny that the Colonies tried to make slave laws, and as such at- 
tempts are conclusive proof that they thought such laws " allowed 
by their state, condition, and circumstances," and that the common 
law on this subject was " inapplicable," — and further, as they are 
allowed by the Charters to be the only and final judges of the mat- 
ter, we consider this point settled — and the consistency of slave 
laws with the Charters made out. 

Mr. Spooner tells us, (p. 22) : 

"Those charters were the fundamental Constitutions of the colonies, with 
some immaterial exceptions, up to the time of the revolution ; as much so as 
our national and state Constitutions are now the fundamental laws of our 
governments." 

But, since the first publication of these remarks, my friend Wm. 
I. Bowditch, Esq., suggests to me, that this whole argument of Mr. 
Spooner's, on the inconsistency of the Slave Laws with the Char- 

7* 



78 



REVIEW. 



ters, is unfounded and absurd ; since, in the more important slave 
States, the Charters were forfeited and withdrawn long before these 
slave laws were passed ! Hence the above assertion of Mr. S. is 
entirely groundless. The Charter of Virginia ceased in 1624. 
Her slave laws were enacted 1667, — 1670, — 1753. The Charter 
of Carolina, North and South, was forfeited 1729. The great slave 
statute of South Carolina bears date 1740 The Charter of Geor- 
gia ceased 1751. Her slave law was passed 1770. To suppose 
such laws void because inconsistent with those expired Charters, 
(if such inconsistency really existed,) would be as absurd as to try 
the acts of our present Congress by the provisions of the Charters, 
or of the Articles of the old Confederation. 

2d. The English Statutes never recognized Slavery here — (pp. 
24, 25.) 

Mr. Spooner must be a Tory in disguise, or a tyro in law, to im- 
agine that it was necessary they should do so in order to render the 
system legal. Has he read our history so superficially — has he 
omitted that somewhat important (!) page of it, the Revolutionary 
discussions of 1775, so entirely, as not to know that, who should 
vote here, how property should be divided and held, who should 
raarry and how; — in a word, all individual rights and relations, 
and all matters of property, were settled by Colonial laws and cus- 
toms; — and that this we claimed as our dearest birthright? Aye, 
and fought for it seven years ? No matter, as to this question of 
domestic slavery, what English laws said, the question is, what did 
American law say? Every child knows this. 

Mr. Spooner says, that parliamentary " toleration of the Slave- 
Trade could not make Slavery — the right of property in man — 
lawful anywhere, not even on board the slave ship." — (p. 23.) 

This is strange, we might almost add, foolish doctrine. All laws 
must have a reasonable interpretation. The right "to declare 
war," given to Congress, means, of course, not only to say that war 
exists, but to carry it on, otherwise Congress does not possess that 
power. So " to raise and support armies," means not merely to 
keep these expensive baubles, but to use them. — (Story's Comm., 
1. 412.) Mr. Spooner tells us, (p. 66,) that the right " to keep and 
bear arms," secured by the Constitution to the people, " implies 
the right to use them, as much as a provision to buy and keep food, 
would imply the right to eat it." Plainly, then, when Parliament 



NO LEGAL SLAVERY IN THE COLONIES. 79 

allow men to trade in slaves, thereby affirming it to be legally right 
to do so, they impliedly allow them to hold and own that, which 
they are permitted to buy and sell. This is too plain to need argu- 
ment. 

Mr. Spooner says, speaking of Slavery itself: 

"It is also doubtful whether Parliament had the power — or perhaps, 
rather, it is certain that they had not the power — to legalize it anywhere, if 
they had attempted to do so. 

" Have Parliament the Constitutional prerogative of abolisliing the writ 
of habeas corpus? the trial by jury? or the freedom of speech and the 
press ? If not, have they the prerogative of abolishing a man's right of 
property in his own person ? " — p. 24. 

To these questions we answer unhesitatingly, yes. The Con- 
stitution of the English Government supposes Parliament to possess 
these powers. It is a self-evident proposition, that the power which 
enacts a law can repeal it. Now Parliament establishes habeas 
corpus; of coarse the same power can repeal it. "Parliament 
might, if public opinion would allow them, abolish the habeas 
corpus act forever." This is the language of Lieber, speaking of 
the omnipotence of Parliament. (Pol. Her. p. 187.) Parliament 
does abolish the right of jury trial every year, as to every English- 
man in a naval or military situation. The same might be done as 
to slaves, equally as well. That it might regulate Slavery was 
very clearly the opinion of Mansfield, in the Sommersett case. We 
need not dwell on this. In this country the case is different. In 
most, if not all of the States, the Constitution protects the writ of 
habeas corpus even against the Legislature; clearly showino-, that 
without such a provison it M'as thought our Legislatures might, like 
the English, do with that as with all other laws — alter and repeal 
them at their pleasure. Any one who wishes to learn how " abso- 
lutely despotic," how "sovereign and uncontrollable to repeal all 
laws, civil, military, ecclesiastical, &.c. &c. ; to alter the established 
religion, to change the constitution of the kingdom and of Parlia- 
ments themselves ; " in short, " to do everything not naturally 
impossible," Parliament is, may consult Blackstone, 1. 160, 161 ; 
also 2 Dall. Rep. 308 ; De Lolme, p. 134. 

To show that this despotic power did undertake to act, and to 
establish slave property in the colonies, we shall trouble the reader 
by citing a single Statute, pointed out to us by William I. Bowditch, 



80 REVIEW. 

Esq., though Mr. Spooner was not able to find any. Did time per- 
mit, doubtless we might fill our pages with more. The quotation 
given below is an express command by Parliament to seize and sell 
negro slaves, like any other property, when needed to pay the debts 
of the master ; being the clearest and most distinct recognition, it 
will be seen, of slave property. The language here is unambigu- 
ous, and serves to explain the wording of other Statutes, about 
which Mr. Spooner has quibbled, trying to make out that they did 
not refer to slaves, because they merely spoke of negroes, (see his 
page 26.) "Negro" is the usual term in many old laws for slave, 
and the two words are used interchangeably. The Virginia Consti- 
tution, of 1776, charges George III. with "prompting our negroes 
to rise in arms against us, — those very negroes, whom, by an 
inhuman use of his negative, he hath refused us permission to 
exclude." See also Conn. Act, 1784; Cons. S. Carolina, 1790. 

(5 George II. c. 7. 6 Statutes at Large, 74.) 
".4/1 .,ict for the more easy recovery of debts in his Majesty's Plantations and 
Colonies in Jlmcrica. 
•'4. And be it further enacted by the authority aforesaid, that from and 
after the said 29th day of September, 1732, the houses, lands, negroes, and 
other hereditaments, and real estates, situate or being within any of the said 
Plantations belonging to any person indebted, shall be liable to, and 
chargeable with all just debts, duties, and demands, of what nature or kind 
soever, owing by any such person to his iMajesty or any of his subjects, and 
shall and may be assets for the satisfaction thereof, in like manner as real 
estates are by the law of England liable to the satisfaction of debts due by 
bond or other specialty, and shall be subject to the like remedies, proceed- 
ings, and process, in any court of law or equity in any of the said Planta- 
tions respectively, for seizing, extending, selling, or disposing of any such 
houses, lands, negroes, and other hereditaments and real estate, towards the 
satisfaction of such debts, duties, and demands, in like manner as personal 
estates in any of the said Plantations respectively are seized, extended, sold 
or disposed of for the satisfaction of debts." 

See also 23 George II. c. 31, A. D. 1750 : 

" ^n Act for extending and improving the trade to Africa. 
" Whereas the tr^de to and from Africa is very advantageous to Great Brit- 
ain, and necessary for the supplying the Plantations and Colonies thereunto 
belonging with a sufficient number of negroes at reasonable rates," &c. «&c. 

Further on the Act speaks — though Mr. Spooner, who quotes 
liberally from it, never got so far as to see it — of "Negroes or 
OTHER goods ! " Yet Mr. Spooner thinks there is nothing in this 



SOMMERSETT CASE. 81 

Statute to show that "negroes" means slaves, or that they are 
considered property ! 

SOMMERSETT CASE. 

3d. If Slavery was tolerated here, the decision of Lord Mans- 
field, in the Sommersett case, 1772, put an end to its legal 
existence. 

James Sommersett was the slave of Charles Steuart, once an officer 
in the Custom House of Boston. He was bought in Virginia, and 
carried thence to London, in 1769. Sometime after, he quitted 
Mr. Steuart ; who thereupon had him seized, and placed on board 
ship to be carried to Jamaica. Granville Sharpe caused him to be 
brought before Lord Mansfield, on a writ of habeas corpus, to try 
the question, " whether a slave, by coming into England, became 
free?" Lord Mansfield, in 1772, decided that no slaveholder 
could exercise any authority over his slave while in England, or 
could carry a slave out of England without his consent. [The 
Encrlish Courts have since held, that if a slave chooses to leave 
England, and return to a slave country, he resumes the condition 
of a slave.] 

So far as the case of Sommersett has any reference to the Colo- 
nies, it recognizes the legal existence of Slavery in Virginia. For 
the arguments of Counsel and the decision of Mansfield, all pro- 
ceed on the supposition, that at home, in Virginia, Sommersett was 
a slave. The decision was, that a person held as a slave abroad, if 
once landed in England, could not be taken thence against his 
will. Now if Sommersett was not a slave in Virginia, the whole 
case proceeded on a mistake. As far as this case goes, therefore, 
it recognizes the legal existence of Slavery in Virginia. 

The case of Sommersett was adopted in the Colonies to the 
exact extent to which it went. Those Colonies which abolished 
Slavery, (Massachusetts, Pennsylvania, Rhode Island, Connecticut, 
New Hampshire, &c.) either refused, under its authority, to deliver 
up slaves brought or flying into their limits, or specially provided 
on what conditions masters should be allowed to bring their slaves 
with them.* 

* Mr. Geo. Bradburn, in a recently published letter, thinks he has found 
additional evidence of the correctness of Mr. Spooner's view of the Som- 



82 REVIEW. 

The Sommersett case has never been supposed to have any 
further reference to the Colonies than that above specified. In- 

mersett case in the following extract from Dr. Belknap's Letter to Judge 
Tucker, Mass. Hist. Collect. 4. 202. He regards it as a proof that the Mas- 
saciiusetts Court, following what he thinks the authority of that case, did 
overrule the Slave Laws of the State, and hence he infers that other States 
ought, and in due time will, follow the example. 

" The blacks had better success in the judicial courts. A pamphlet, con- 
taining the case of a negro, who had accompanied his master from the West 
Indies to England, and had there sued for and obtained his freedom, was 
reprinted here; and this encouraged several negroes to sue their masters for 
their freedom, and for recompense for their service, after they had attained 
the age of twenty-one years. The first trial of this kind was in 1770. The 
negroes collected money among themselves to carry on tiie suit, and it 
terminated favorably for them. Uther suits were instituted between that 
time and the revolution, and the juries invariably gave their verdict in favor 
of liberty. The pleas on the part of the masters were, that the negroes 
were purchased in open market, and bills of sale were produced in evi- 
dence ; that the laws of the province recognized slavery as existing in it, by 
declarin<r that no person should manumit his slave without iriving bond for 
his maintenance^ &c. On the part of the blacks it was pleaded, that the 
royal ciiarter e.xpressly declared ail persons born or residing in the province 
to be as free as the king's subjects in Great Britain; tiiat by the laws of 
England, no man could be deprived of his liberty but by the judgment of his 
peers; that the laws of the province respecting an evil existing, and at- 
tempting to mitigate or regulate it, did not authorize it; and, on some occa- 
sions, the plea was, that though the slavery of the parents be admitted, yet 
no disabilitv of that kind could descend to children. 

" Durin" the revolution-war, the public opinion was so strongly in favor 
of the abolition of Slavery, that in some of the country towns votes were 
passed in town-meetings, that they would have no slaves among them ; and 
that theij loould not exact of masters any bonds for the maintenance of liberated 
blacks, if they should become incapable of supporting themselves." 

The answer to this use of Dr. Belknap's statement is as follows : 

Dr. Belkmp does not probably refer to the Sommersett case. That was 
in 1772, wliereas his case occurred previously, in 1770. To be sure, other 
similar cases had occurred before this of Sommersett. The truth is, the 
movements in behalf of slaves were simultaneous on both sides the ocean. 
This, however, is of little consequence. The true explanation of the suc- 
cess of the negroes here is quite different from that suggested by Mr. 
Bradburn. 

1st. By the law of 1646, no one born in Massachusetts, could legally be a 
slave. The recognition of this principle doubtless freed some. Parker, C.J. , 
says, 16 Mass. 75: — "By the Colonial law of 1646 no bond slavery could 
exist, except in the case of lawful captives taken in just war, or such as 
willingly sold themselves, or were sold to the inhabitants. Of course, the 
children of those who in fact were, or who were reputed to be, slaves, 
not coming within the description, could not be held as slaves. And in the 
year 17;Kj it was solemnly and unanimously decided by the Court, that the 
issue of slaves, although born before the adoption of the Constitution, were 
born free." 

2d. As to the rest, a more truly Yankee notion than pure love of liberty 
probably secured their freedom. Parsons, C. J., 4 Mass. 123, A. D. 1808, 
remarking that the conclusion above referred to by Judge Parker was, 
however sound, contrary to general practice and usage, tells us, referring to 



COLONIAL STATUTES. 



83 



stead of deciding Slavery to be illegal here, it made no decision 
respecting American Slavery either way. But if it is to be quoted 
at all, the only thing found in it is a tacit recognition of the legal 
existence of Slavery in Virginia. This view of the case is fully 
confirmed in the able review of it by Lord Stowell, in the case of 
the slave Grace, 2 Hagg. Adm. 94. 

COLONIAL STATUTES. 

4th. The Colonial Statutes establishing, or relating to Slavery, 
are void, because they do not define, with sufficient precision, who 
are to be slaves. 

In most of the English colonies in America, Slavery originated 
in custom. Such has usually been its origin wherever it has 
existed. Some of the Colonies afterwards regulated, recognized, 
and established it by particular statutes; some left it to that irregu- 
lar custom in which it commenced. In this respect, black Slavery, 
on this side the water, exactly resembled white Slavery (villeinage) 
in the mother country. Both originated in custom, and the 
rules recrulating each were, from time to time, laid down by the 
Courts, or by the Legislatures, as it chanced. 

If to this any one shall object, that " all customs must have a 
reasonable beginning," and that mulus usus aholcndus est, (a bad 
custom is to be disregarded,) we shall reply : 

ist. Why did not these maxims of the Common Law, if they are 
to be taken literally, abolish villeinage (white slavery) in England? 
Any explanation which makes them consistent with that system of 
Slavery, will show that they were consistent with our Slavery also. 

2d. We reply, with Lord Coke, that " reasonable is not to be un- 
derstood of every unlearned man's reason, but of legal and artificial 

those cases where slaves obtained their freedom previous to the Constitution 
of 1760, " The defence of the master was faintly made, for such was the 
temper of the times, that a restless, discontented slave was worth little; and 
when his freedom was obtained in a course- of legal proceedings, the master 
was not holdenfor his future support, if he became poor." 

The few lines of Dr. Belknap, which we have italicised, point to the 
same idea, and afford, probably, the true explanation vi'hy men went through 
Court, to free slaves, in 1776. — See Remarks of Shaw, C. J., in the Med. 
case, 18 Pick. 193. For an interesting statement as to the first line of the 
Massachusetts Constitution, and its being specially intended to ab<dish 
Slavery, see the Letter of Rev. Dr. Lowell, in the Boston Courier, May 
20, 1647. 



84 REVIEW. 

reason, warranted by authority of law ;" and with Sir William Scott, 
(Lord Stowell,) " when it is cried out that ' bad customs are to be 
disregarded,' it is first to be proved, that even in the consideration 
of England, the custom of Slavery is considered a had custom in 
the Colonies." 

But Mr. Spooner goes further, and asserts that Slavery cannot 
legally originate in custom. It must be authorized, he says, from 
the very first by express statute. He founds this opinion on the 
language of Mansfield ; which is the only evidence he quotes in 
support of such a novel and strange idea. See the remarks of 
Lord Stowell, as to Slavery in Antigua, 2 Hagg. Adm. 94. In 
the Sommersett case, Mansfield said : 

" So high an act of dominion must be recognized by the law of the coun- 
try where it is used. * * * The state of Slavery is of such a nature, that 
it is incapable of being introduced on any reasons, moral or political — but 
only positive law, which preserves its force long after tiie reasons, occasion, 
and time itself from whence it was created, is erased from the memory. It 
is so odious that nothing can be suffered to support it but positive law." 

• From this Mr. Spooner infers, as follows : 

"Slavery, then, being the creature of positive legislation alone, can be 
created only by legislation that shall so particularly describe the persons to 
be made slaves, that they may be distinguished from all others. If there be 
any doubt left by the letter of the law, as to the persons to be made slaves, 
the efficacy of all other slave legislation is defeated simply by that uncer- 
tainty. * * * Custom imparts to Slavery no legal sanction." — p. 32, and 
see p. 24. 

We confess we do not see anything of this in the remarks of Lord 
Mansfield. He says merely that Slavery must be created by jwsi- 
tive law, but not a word as to the exactness with which the persons 
must be pointed out and distinguished. All this is Mr. Spooner's 
addition. 

Again ; what is meant by positive law ? Does it refer exclusively 
to statutes, written acts of Legislatures, or may it include usages, 
customs, and rules of Courts also? 

We answer, it includes all these; the epithet is as often applied 
to these as to written statutes. This indeed is evident from the 
very language of Mansfield ; " positive law, which preserves its 
force long after the reasons, occasion, and time itself, from whence 
it was created, is erased from the memory." 



COLONIAL STATUTES. 85 

Now the time, date, of a written statute endures as long as the 
statute itself, and so often of the rest. Lord Mansfield is evidently 
describing a usage or custom, which insensibly grows up in a coun- 
try, unmarked and unregarded, until by and by, it is impossible to 
tell precisely where, when, and how it commenced. 

Chief Justice Shaw, in the Med. case, says of this remark of Lord 
Mansfield : 

" By positive laic, in this connection, may be as well understood custom- 
ary law as the enactment of a statute; the word is used to designate rules 
established by tacit acquiescence, or by the legislative act of any State, and 
which derive their force from such acquiescence or enactment, and not be- 
cause they are the dictates of natural justice, and as such of universal obliga- 
tion." 

We have quoted the above remark of Judge Shaw, not only as 
reliable authority for our assertion, but also as containing a 
concise definition of "positive law." Authority on this point 
we do not need, for every reader of law books knows the mean- 
ing ; and the only wonder is, how so ingenious a man as Mr. 
Spooner ever fell into the gross error of founding an essential por- 
tion of his argument on so plain a mistake. Positive law is the 
term usually employed to distinguish the rules, usages, and laws 
which are made by man, from those which God has implanted in 
our nature. It matters not whether these rules and laws are writ- 
ten or unwritten, whether they originate in custom, or are expressly 
enacted by Legislatures. In a word, jjositive means arbitrary, and 
is used as opposed to moral. 

Our limits will not permit quotations to show the use of this 
word, neither are they necessary, but any one who is curious on 
the point, may find the word used in this sense everywhere in law 
books, and especially, Blackstone, L pp. 63, 70; Chritian's Note 
to Blackstone, p. 58, and Doctor and Student quoted there; Selden 
on Fortescue, quoted at the end of Mr. Spooner's first chapter; 
Taylor's Civil Law, p. I3"2 ; Wooddesson, p. 40, &-c. &c. ; Bouvier 
and Tomline's Law Dictionaries; Austin's Jurisprudence; Ruth- 
erforth, Wheaton, &/C. &lc. 

Such being the meaning of the word positive, Mr. Spooner's ar- 
gument falls to the ground ; and we are authorized, in asserting 
that custom and usage are not only a usual, but a legal commence- 
8 



86 REVIEW. 

ment of Slavery ; and that there is nothing in the language of Mans- 
field opposed to this idea. 

Nevertheless, the Colonies did take care to point out and define 
by statute, very precisely, who were to be slaves. We need not 
spread out the laws here. They will be found in Stroud, and a 
part of them in the notes to Mr. Spooner's fourth chapter. They 
enact : 

1st. That all negroes, Indians, and niulattoes, &-c. and their off- 
spring, except those i\\Qn free, shall be slaves. 

2d. That, in every trial, it shall be presumed, that every negro 
and mulatto is a slave until he proves the contrary. 

We hardly see how a more precise description or direction could 
be given. The rules may be short, but they speak with " irresist- 
ible clearness," leave no case unprovided for, and sweep all clean 
before them. All of a certain race are slaves, and in case of any 
doubt, they are to be preszimed slaves till the contrary is proved. 
Surely there never can be any doubt or hesitation in any Court how 
to act under such rules ; provided always a Court can be found 
base enough to act at all under such an accursed system. Indeed 
the system of Slavery will never be successfully attacked by objec- 
tions like these. In cold, calculating, systematic plan and fore- 
sight, the slaveholders of this, as of every other country, have al- 
ways been distinguished. The people have seldom regained their 
freedom by finding a loose joint in the harness of their tyrants ; no, 
it has usually been necessary to trample armor and armor-wearers 
together in the dust. 

Mr. Spooner says, " the fact that Slavery was tolerated in the 
Colonies, is no evidence of its legality." This is true, on his sup- 
position that custom is no legal or competent source of the system, 
a doctrine which he tries, but in vain, to deduce from Lord Mans- 
field's language. Having shown the unsoundness of his view of the 
meaning of "positive law," the above assertion falls also to the 
ground. Toleration or acquiescence is what gives force, effect, 
and legal validity to custom, especially when such customs are re- 
cognized by legislative action. 



DECLARATION OF INDEPENDENCE. 87 



DECLARATION OF INDEPENDENCE. 

5th. "The Declaration of Independence abolished it." 
In reply, we have only to say, that the Declaration had nothing 
to do with Slavery. That paper "dissolved the political bands" 
that bound the Colonies to England, and thai was all it did, or was 
intended to do. No Court has ever held it to be the " fundamental 
law " of the country. On the contrary, it is simply a State paper, 
a political act, — changing the form of government, and having no 
relation to individual rights. We cannot better describe the legal 
character of the Declaration, that given to it by the Courts of the 
country, than in the words of J. Q,. Adams. — (Oration at duincy, 
1831, p. 20.) 

"The Declaration of Independence asserted the rights and acknowledged 
the obligations of an independent nation. * * * It made no change in the 
laws — none in the internal administration of any one of the Confederates, 
other than such as necessarily followed from the dissolution of the connec- 
tion with Great Britain. It left all municipal legislation, all regulation of 
private individual rights and interests to the people of each separate colo- 
ny; and each separate colony thus transformed into a State of the Union, 
wrought for itself a Constitution of Government." 

Every one knows, and every page of our history proves, that the 
Declaration was neither intended nor supposed to abolish Slavery. 
Among other facts, we may refer to the insertion, in the Massachu- 
setts Constitution, of a special clause for this purpose ; which would 
have been unnecessary if the Declaration had already done the 
work. Of such acts as the Declaration, the intention is the main 
thing, in getting at the meaning. See the Letter of Dr. Belknap, 
in the Mass. Hist. Coll., and that of Dr. Lowell, in the Boston Cour- 
ier of May 20, 1847. 

6th. The Articles of Confederation do not refer to Slavery; and 
the State Constitutions of 1789 are either inconsistent with the ex- 
istence of any such institution, or wholly silent about it. 

This is Mr. Spooner's last point. The Articles of Confederation 
speak of " free inhabitants," and " free citizens." The natural 
and obvious meaning of this language is, inhabitants and citizens 
not enslaved. This we have shown, and, in fact, Mr. Spooner al- 
lows it. He tries to affix a technical meaning to the word " free." 



88 REVIEW. 

It is true the word has a technical meaning, as we have before 
stated, when used alone, or with "mm," as in "free men:" but 
never, we believe, when joined with "inhabitants," or "citizens." 
However, the question whether the Articles of Confederation did, 
or did not, speak of slaves, is of no consequence. We shall leave 
it, merely remarking that any plain reader of them will at once say 
that they do ; which is the best evidence that the fact is so. 



EARLY STATE CONSTITUTIONS. 

We have reached, then, the State Constitutions of 1789. At 
that time. Slavery existed in the midst of the nation; was tolerated 
by the acquiescence of the whole people, and known to all as a 
great fact, a prominent part of their social arrangements; recog- 
nized by the sovereign power of Parliament ; established, regulated 
and defined, by repeated Statutes of the Colonial Assemblies. 

Suppose that Mr. Spooner's assertion be true, and that in such 
a state of things these Constitutions did not allude in any way to 
Slavery, what then? Does that prove that the system could not 
exist after such Constitutions were adopted? Not at all. These 
Constitutions, many of them, at least, if not all, make no allusion 
whatever to property in land — to the rights of marriage — to the 
right of a father to his infant son's earnings — to a man's property 
being answerable for his debts; some, that of Virginia, for instance, 
make no provision for raising taxes, or even punishing crime. Are 
all these ih'mgs, ihexeioxe, unconstitutional? Certainly not. Po- 
lygamy is not forbidden in any one of them. Is polygamy therefore 
legal? No; these Constitutions do not attempt to regulate, de- 
scribe, or even notice, the organic skeleton of social life, — the 
granite ribs of the social globe. They take them for granted, and 
proceed to erect upon them, (suffer us to change the figure) as 
upon a recognized and well-known foundation, the more change- 
able framework of a Government. That the union of one man and 
one woman make marriage — that land may be owned and sold — 
that creditors may sue and debtors must pay, — these things and 
others, the customs and usages of the race, for tohich the Constitution 
is intended, are taken for granted. It is not specially provided that 
Court proceedings shall be in English, or that laws shall be printed 



EARLV STATE CONSTITUTIONS. 89 

in that language. All these things are presumed ; and as according 
to the well-known rule of law, statutes are to be interpreted 
according to the subject matter, so Constitutions are unintelligible, 
unless we know first the race, usages, time, country, and general 
institutions, for which they were intended. 

Now, suppose that our Constitutions had taken Slavery, one 
great American Institution, for granted, as they did the other 
"great facts" of social life, there would have been nothing 
wonderful in such an occurrence. Unless we found some eijjress 
abolition of the system, or some clause equivalent to it, it would 
have continued as before. It was the first line in the Massachu- 
setts and New Hampshire Constitutions, " all men are born free," 
that abolished Slavery in those States. Blot that out, and the 
omission elsewhere to mention Slavery would have been no bar to 
its existence. The abolition of so gigantic and deep-rooted a 
system is never " done in a corner," or by stealth. It is preceded 
by an agitation sufficient to shake a continent, by long and angry 
discussion, by convulsion and fierce resistance ; and when the 
long-dreaded and long-wished moment comes, " the boldest holds 
his breath for a time." Where were all these characteristics of 
such an event in 1776, or 1789 ? — when, as Mr. Spooner thinks, 
one fine morning folks waked up, and were agreeably surprised to 
find the system gone, although they all designed and expected its 
abolition ! 

Again; Mr. Spooner says that the Constitution of Virginia com- 
mences with the declaration that " all men are by nature equally 
free," — and this would abolish all the slave laws of that State. 
True ; it ought to do so. Suppose it had : he has only, by this 
means, got rid of one slave State. There are plenty more to which 
the pro-slavery clauses of the Constitution can apply. The presence 
of one slave State in the Union is, morally, as bad as the presence 
of a dozen. But the question now is, not what loe think ought to 
be the result of certain provisions in the Virginia Constitution ; 
but ichat is the interpretation given to it by that Court, which, and 
WHICH ALONE is authorized to construe it, namely, — the Supreme 
Court of Virginia. 

The reader will recollect that Mr. Spooner is attempting to show 
that the United States Supreme Court has, according to the rules 
of law, authority to declare all the slaves in this nation free. One 
8* 



90 REVIEW. 

reason why he thinks so is, that the slave laws of Virginia conflict 
with her Constitution, and are, therefore, void. Now it happens 
that tlie Supreme Court of that State do not think so. And the 
Supreme Court of the United States hold that they have no right 
to reverse or control the decisions of State Courts in relation to 
such a question, "to declare State laws void, although they may 
be repugnant to the Constitution of the State." (See Story, 
Comm. 3. 701.) Especially is this the case in questions affecting 
property, (5 Peters, 291, and the note, 6 Peters, C. R. p. 498.) 

However, this question as to Virginia is unimportant. If we 
grant Mr. Spooner all he asks, it only rids us of one slave State, 
and there were five more in 1789. 

But, lastly, the State Constitutions do refer to and recognize 
Slavery. Virginia speaks of "our negroes," &c. as we have above 
quoted. Interpreted, as that must be, by the usage of that day, it 
refers to slaves. So of Pennsylvania, and her mention of " slaves," 
quoted by Mr. Spooner. Maryland and South Carolina specially 
provided for the continuance in force of all laws not repugnant to 
the new Constitutions, and there is nothing in them repugnant to 
Slavery. Mr. Spooner, on his supposition that the old Charters 
did not warrant Slavery, says there were no valid laws in South 
Carolina and Maryland to be continued. We have before disposed 
of this argument, and shown that those laws were valid and con- 
sistent with the Charters; consequently they were continued; 
indeed, whether so consistent or not, having always been consid- 
ered " latos," up to that time, and all laws being continued, it 
seems to us any Court would hold, and common sense would ratify 
the decision, that those were the laws which the sovereign people, 
the makers of the Constitution, and not bound even by Charters, 
intended and had the power to re-enact and continue. All laws 
" not repugnant to the Constitution " were continued. It mattered 
not, then, how repugnant they might have been to the old Charter. 

The use of the word "free," also, in those Constitutions, shows 
the same thing. We have already sufficiently exposed Mr. 
Spooner's rash and unfounded assertions as to this term ; we shall 
not repeat what we have before said. Neither shall we go over all 
the slave State Constitutions ; it would require too much space. 
We simply state that the word "free" had been sometimes used 
technically, and still was so, but not usually in the slave States ; 



EARLY STATE CONSTITUTIONS. 91 

there the primary meaning was preserved to distinguish the class 
not enslaved. We shall confine ourselves to one State; — one is 
enough to sustain our argument, and our space forbids us to 
enlarge. We choose South Carolina. 

South Carolina (then including North Carolina,) early recog- 
nized Slavery. Her celebrated Constitution, drafted by John 
Locke, and which went into operation in 1669, and continued till 
1693, provides that "every freeman of Carolina shall have absolute 
power and authority over his negro slaves, of what opinion or 
religion soever." 

The sanction thus early given was continued by successive legis- 
lation down to the Revolution. The Constitution, adopted March 
26, 1776, provides, by reference to a former statute, of 1759, that 
only " free white men, residents and inhabitants of the Province, 
for one year," &c., should vote: and that "free born subjects of 
Great Britain, residents in the Province one year, &c., having at 
least five hundred acres of land and twenty slaves," should be eligi- 
ble to office. In October, 1776, the number of slaves necessary 
was reduced to ten, and only " free white men, subjects of this State, 
and resident in the State twelve months, &,c., having at least five 
hundred acres of land and ten slaves," were declared qualified for the 
Assembly. Here not only the word "slaves" gives us a distinct 
recognition of the system, but the use of the word " free." It can- 
not mean merely, as Mr. Spooner suggests, men who are citizens, 
because it would not then have been necessary to go on and specify 
that they should be "residents," "inhabitants," "subjects:" — 
since a " free man " in Mr. Spooner's sense, that is a citizen, must 
necessarily have been a subject. In our sense of " free," not a slave 
there might be many " free white men " in the state, who, not being 
subjects and citizens, would have been qualified as members, unless 
it had been specially provided that such should be subjects, as well 
as free. This Constitution continued till 1778, when the one from 
which Mr. Spooner quotes was adopted, which remained in force 
till 1790. In this, all direct mention of slaves was dropped. In 
the Constitution of 1790, the State returned to her old policy, and 
made the holding of " ten negroes," the being " a free white man, 
of the age of twenty-one years, and a citizen and resident of the 
State," the qualifications for a seat in her Legislature. When the 
Constitution of 1778, from which Mr. S. quotes, speaks of " every 



92 REVIEW. 

free white man resident and inhabitant of this State," &c., Mr. S. 
says this word "free" has no reference to Slavery. Let us see. 
The clause is copied from laws which had been in force for half a 
century, and distinctly recognized by the Constitution of 1776. In 
all those, the ''free white man " is the holder of " twenty slaves," 
"ten slaves," — he is to be a resident — subject, and, in 1790, citi- 
zen of the State. To make the term " free," in this connection, 
express merely citizenship, as Mr. Spooner proposes, is to make 
it superfluous and unnecessary. Taken in connection with these 
terms, there can be no doubt of its true signification. It meant the 
class that held slaves, and was used to distinguish them from their 
slaves. The reader will remember Lord Mansfield's rule, the uni- 
versal rule, that ambiguous words are to be taken to mean what 
they have clearly meant in other similar laivs. This consideration 
fixes beyond a doubt, the true signification of the word in this place. 

Mr. Spooner says " free," in this connection, (" free white man,") 
cannot be the opposite of slave, because it would imply that some 
ichite men might be slaves. This objection would never have been 
brought by an Abolitionist. Such know too well by Southern ad- 
vertisements. Southern law cases, aye, and by the recent action of 
the Carolina Legislature, how often "pure tvhite" men are found 
in chains. 

Finally, suppose any of the slave States were deficient in valid 
slave legislation in 1789; they have made up for it since. Their 
Constitutions now are full of Slavery. But, says Mr. S., they can- 
not enslave people, once free. Who will prove this ? We assert, 
and challenge a contradiction, that Pennsylvania may, in perfect 
consistency loith the United States Constitution, re-create Slavery 
to-day. No clause in that instrument forbids any of the old thirteen 
States from setting up Slavery, if any one is mad enough to wish 
it ; and once established, it could claim the benefit of all the pro- 
slavery clauses as fully as the more ancient wickedness of the Old 
Dominion or of Carolina. It is idle, therefore, to waste time in 
ferreting out the precise condition of the Constitutions of 1789. 
That is a very immaterial point. Indeed, the whole discussion is a 
waste of time. The Constitution of the United States deals with 
Slavery as a fact, and gives it, as such, certain rights. Such is the 
general rule as to ante-constitutional maiiexs. (See Story, 1. 206.) 
The Constitution no more undertook to decide whether Slavery was 



EARLY STATE CONSTITUTIONS. 



93 



legally planted here, than it did to determine, before it gave Congress 
the right to regulate commerce with the Indians, whether they had the 
best original title to this soil, five hundred years ago, d6C. Sup- 
pose it should turn out, that those tribes had no legal right here, it 
it would not alter the force or meaning of the Constitutional pro- 
visions respecting them. 

We close here our protracted review of this essay. The only 
apology we can offer to the readers of the Standard for occupying 
so many of their columns, is not the ingenuity of the argument — 
though that we are willing to confess, in Mr. Spooner's favor, de- 
serves some credit, — but we were told that the book, hoisted into 
undue notice by the loud vaunts of unthinking friends, was mis- 
leading worthy men, whose want of time, or scanty acquaintance 
with the subject, or too high opinion of its critics, prevented them 
from fully seeing the unsoundness of the pretended argument. In 
general, we think the American Society may well take the Consti- 
tution to be what the Courts and Nation allow that it is, and leave 
the hair-splitters and cob-web spinners to amuse themselves at their 
leisure. Sufficient for us is our appropriate and gigantic work, of 
trying to convert a community which exults in being, and in being 
considered, the lover and the supporter of Slavery. 



NOTE, 



We have referred so often to the English system of villenage that we make 
here, for the reader's satisfaction, a few extracts to show its nature and ex- 
tent, — and to qualify the general statement, so often made, that the Com- 
mon Law does not allow Slavery. Our American slavery was but a shoot 
of the same tree, a little varied in its form by the climate. So far from it3 
being repugnant to English Law, the interval between the death of vil- 
lenage in England and the birth of Negro Slaverj' on this side the water 
was so brief, that an active fancy might almost see, on the principle of 
Hindu transmigration, the vital spirit of Saxon bondage passing with colo- 
nists across the ocean, to reappear, in another form, and with fresh life, on 
the virgin soil of the New World. Though the number of villeins gradu- 
ally decreased till they finally disappeared, still it would be difficult to say 
when, if ever, English law distinctly forbade the sj'stem ; certainly not till 
some time after the settlement of this country. It was partially destroyed 
in 1660 : but, unless it must be considered to have been too much hated to 
need a law forbidding it, it waited for final extinction till 1834. Stephens, 
in his "Slavery," gives an elaborate account of villenage, but the extracts 
below are from Hargrave's argument on the Sommersett case, and from 
Blackstone's Comm. 2. 93, 96. Mr. Hargrave says : 

"The only Slavery our law-books take the least notice of is that of a vil- 
lein. * » * ]Vo Slavery can be lawful in England, except such as will 
consistently fall under the denomination of villeinage. The condition of a 
villein had most of the incidents which I have before described in giving 
the idea of slavery in general. His service was uncertain and indetermin- 
ate, such as his lord thought fit to require, or, as some of our ancient writers 
express it, he knew not in the evening what he was to do in the morning — 
he was bound to do whatever he was commanded. He was liable to beat- 
ing and imprisonment and every other chastisement his lord might prescribe, 
except killing and maiming. He was incapable of acquiring property. * * 
He was himself the subject of property ; as such saleable and transmissible. 
* * * If he was a villein in gross, he was an hereditament, or chattel 
real, according to his lord's interest, being descendible to the heir where the 
lord was absolute owner, and transmissible to the executor, where the lord 
had only a term of years in him. Lastly, the Slavery extended to the issue,' 
if both parents were villeins, or if. the father only was a villein. The ex- 



NOTE, 95 

tinction of villenage, all agree, happened about the latter end of Elizabeth's 
reign, or soon after the accession of James. [James came to the throne 
1603.] But though villeinage is obsolete, by a strange process of human af- 
fairs, the memory of Slavery expired, now furnishes one of the chief obsta- 
cles to the introduction of slavery attempted to be revived." 

Blackstone, after giving much the same account, adds : 

«' A villein, in short, was in much the same state with us, as Lord Moles- 
worth describes to be that of the boors in Denmark, and which Stiernhook 
attributes also to the traals, or slaves, in Sweden ; which confirms the pro- 
bability of their being in some degree monuments of the Danish tyranny." 

" When tenure in villenage was virtually abolished, by the statute of 
Charles II., there was hardly a pure villein left in the nation. For Sir 
Thomas Smith testifies, that in all his time (and he was secretary to Edward 
VI.) he never knew any villein in gross throughout the realm; and the few 
villeins regardant that were then remaining were such only as had belonged 
to bishops, monasteries, or other ecclesiastical corporations, in the preceding 
times of popery. For he tells us, that 'the holy fathers, monks and friars, 
had in their confessions, and specially in their extreme and deadly sickness, 
convinced the laity how dangerous a practice it was, for one christian man 
to hold another in bondage : So that temporal men by little and little, by 
reason of that terror in their consciences, were glad to manumit all their vil- 
leins. But the said holy fathers, with the abbots and priors, did not in like 
sort by theirs; for they also had a scruple in conscience to impoverish and 
despoil the church so much, as to manumit such as were bond to their 
churches, or to the manors which the church had gotten ; and so kept their 
villeins still." 

Cooper, in his 'Justinian,' p. 414, quotes Smith further, as saying, that " at 
last some bishops manumitted their villeins for money — and others on 
account of popular outcry : and at length the monasteries falling into lay 
hands, was the occasion that almost all the villeins in the kingdom were 
manumitted." 



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